Citation Nr: 1005202 Decision Date: 02/04/10 Archive Date: 02/25/10 DOCKET NO. 08-21 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus. 2. Entitlement to an evaluation for diabetes mellitus in excess of 20 percent disabling. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD J. Schroader, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to April 1969. He is the recipient of a combat infantryman badge and was awarded a Purple Heart medal. See DD Form 214; see also DA Form 8-275-3, August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veteran's Affairs (VA) regional office (RO) located in St. Louis, Missouri that denied service connection for hypertension and that continued a rating of 20 percent disabling for service-connected diabetes mellitus. The issue of entitlement to an evaluation for diabetes mellitus in excess of 20 percent disabling is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran has hypertension caused by his service-connected diabetes mellitus. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, service connection for hypertension is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim for service connection for hypertension has been granted, as discussed below. As such, the Board finds that any error related to the VCAA on this claim is moot. See 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159 (2009). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that we find to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from personal injury suffered or a disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 38 C.F.R. § 3.303(b) (2009). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. Id. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a right to compensation for a present disability, a Veteran generally must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so- called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310 (2009). 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2009); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310 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 non- service-connected disability by a service-connected one 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 may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. The Veteran claims that he incurred hypertension as a result of his service-connected diabetes mellitus. For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2009). In this regard, the Board notes that VA treatment records reflect that the Veteran was diagnosed with hypertension in June 2005 and prescribed Lasix for treatment, and that hypertension has continued to be an active problem. See, e.g., July 2008 Treatment Record and Problem List. A September 2006 Physician Statement prepared by Dr. K., a physician at the VA facility where the Veteran has resided since 2001, reflects that she opined that the Veteran had cardiovascular complications due to his diabetes mellitus, to include hypertension. A separate September 2006 Physician Statement signed by Dr. W.M., another physician at the same VA facility, reflects that he too opined that the Veteran had cardiovascular complications due to his diabetes mellitus, but no notation regarding hypertension was made by Dr. W.M. An October 2006 VA examination report reflects that the examiner opined that "there is no evidence of hypertension; however, the Veteran did have hypertension, which was managed with antihypertensive medications and then switched to management with Lasix, a diuretic." In the same report however, the examiner recorded a conflicting notation that the Veteran was currently taking Lasix to manage his blood pressure. A May 2008 VA records medical opinion reflects that the VA physician noted the Veteran's diagnosed hypertension and, as discussed below, he opined that it was at least as likely as not related to his diabetes mellitus. A July 2008 VAMC treatment record reflects diagnoses including a history of hypertension and flash pulmonary edema, and a notation was made that multiple episodes of white frothy sputum occurred that was suctioned and coughed up when the Veteran discontinued taking Lasix. The record reflects as follows: History of elevated blood pressure and could not tolerate ace due to hyperkalemia event (K+ of 17 and increased cre). Blood pressure currently well controlled on current regimen around 100/74. As discussed above, there is conflicting evidence as to whether the Veteran has been currently diagnosed with hypertension during the period on appeal. Having considered that evidence, and having reviewed the specific blood pressure readings contained in the claims folder, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether or not a diagnosis is shown. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that hypertension was diagnosed during the period on appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). The Board must now address whether the Veteran's hypertension is secondary to his service-connected diabetes mellitus or is otherwise related to service. As an initial matter, the Board notes that the Veteran's service treatment records are negative for any diagnosed hypertension or notations of abnormal blood pressure. A May 1966 enlistment examination report reflects that the Veteran's blood pressure was 100/64, and a March 1969 separation examination report reflects that his blood pressure was 129/80. VA treatment records reflect that the Veteran was diagnosed with diabetes mellitus in 2001, and later was diagnosed with hypertension in June 2005 and a diabetic foot ulcer around November 2006. See, e.g., Letter, Dr. K., Missouri Veterans Home, September 2004; VA Active Problems List, July 2008. As noted above, a September 2006 Physician Statement prepared by Dr. K., a physician at the VAMC where the Veteran has resided since 2001, reflects that she opined that the Veteran had cardiovascular complications due to his diabetes mellitus, to include hypertension. The May 2008 VA records medical opinion reflects that the VA physician noted he reviewed the claims file "in tedious detail," as well as the inpatient notes in CPRS. The examiner opined that the Veteran's hypertension was at least as likely as not secondary to his diabetes, noting as follows: [T]here is not a history of long standing hypertension before the onset of the diabetes by records. It is most likely that longstanding diabetes will effect the kidneys and worsen hypertension. The Board acknowledges that the above report erroneously reflects that "it is less least as likely as not" that the Veteran's hypertension is secondary to his diabetes. The Board finds, however, that this language constitutes a typographical error in transcription and that it is readily apparent that the examiner's intended language was that it was "at least as likely as not" based on the explanation provided in the report. The Board finds the above May 2008 VA examiner's opinion to be the most probative evidence of record with regard to whether the Veteran's hypertension is proximately caused by his service-connected diabetes mellitus. The examiner provided a clear rationale for his opinion that is supported by the medical evidence of record, particularly the fact that the Veteran was not diagnosed with hypertension until after he incurred diabetes mellitus. Therefore, having resolved doubt in favor of the Veteran, the Board will grant the Veteran's claim of service connection for hypertension. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009). ORDER Entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus is granted. REMAND The Veteran's service-connected diabetes mellitus is currently assigned a 20 percent disability rating effective February 22, 2004. The Veteran seeks a higher rating. He claims that his diabetes mellitus requires insulin, a restricted diet, and regulation of activities. He also claims that he was hospitalized twice for hypoglycemic reactions within the one-year period preceding the filing of his claim. See Form 21-4138, Statement in Support of Claim, September 2006. After a thorough review of the Veteran's claims file, the Board has determined that additional development is necessary prior to adjudication of this claim. Under the Veteran's Claim Assistance Act (VCAA), VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009). The Veteran was awarded service connection based on presumptive exposure to herbicides in Vietnam and no VA examination was provided prior to such grant. In October 2006, the Veteran filed a claim for an increased evaluation, and he was provided an October 2006 VA examination. The examination report, however, does not adequately address the rating criteria set forth in Diagnostic Code 7913, e.g., whether the Veteran's diabetes mellitus requires insulin, a restricted diet, regulation of activities, hospitalizations for hypoglycemia or ketoacidosis, or weekly or twice per month visits to a diabetic care provider. In this regard, the Board acknowledges that the report reflects that the Veteran required a feeding tube and that the record reflects that the Veteran resides in a VA Nursing Home Care Unit for, among other things, Alzheimer's disease and dementia since around September 2001 (and previously at the Missouri Veteran's Home since 1998). Therefore, the Board recognizes that VA examination is complicated by the Veteran's current health problems. Nevertheless, the Board finds that another VA examination is necessary prior to rendering a decision on this appeal. Furthermore, the Board notes that the relevant VA treatment records associated with the claims file only include VA facility records dated September 2005 to September 2006 as well as select (incomplete) VA treatment records submitted by the Veteran's wife dated between November 2006 through July 2008. In addition, the claims file does not contain records of hospitalizations referred to by the Veteran and the VA examiner except for September 2005 VA hospitalization records (that reflect that the Veteran was hospitalized due to hyperglycemia with blood glucose levels exceeding 666). VA has a duty to assist the Veteran in obtaining all potentially relevant documents to substantiate a claim, including medical evidence either to verify or not verify the claim. 38 U.S.C.A. § 5103A(a)(1), (b) (West 2002); 38 C.F.R.§ 3.159(c) (2009). Therefore, an attempt should be made to obtain all of the Veteran's VA treatment records pertaining to his diabetes mellitus dated from January 2005 through August 2005 (as a September 2006 Physician's Statement includes a handwritten notation of an apparent February 2005 hospitalization), and from October 2006 through present, and to associate them with the claims file. See Dunn v. West, 11 Vet. App. 462, 466-467 (1998) (Records created by VA are considered constructively part of the record and should be associated with the claims file); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's VA treatment records pertaining to his diabetes mellitus dated from January 2005 through August 2005, and from October 2006 through present, and associate them with the claims file. If these records are found to be unavailable, this should be specifically noted in the claims file. 2. Thereafter, schedule the Veteran for a new VA examination with an appropriate physician to determine the current severity of his service-connected diabetes mellitus. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. With regard to the Veteran's diabetes mellitus, the examination report should specifically state the degree of disability present, to include whether the Veteran's diabetes mellitus requires (a) insulin, and if so, whether it requires more than one injection per day, (b) a restricted diet, (c) regulation of activities, i.e., avoidance of strenuous occupational and recreational activities (and if such avoidance is unnecessary solely because of other health problems, please note this fact) (d) hospitalizations (indicate how many per year) for episodes of ketoacidosis or hypoglycemic reactions, (e) visits to a diabetic care provider either weekly or twice per month (and if visits that frequent are not necessary because the Veteran is in residential nursing care, then please opine as to how regularly he would require visits to a diabetic care provider were the Veteran not residing in the nursing care unit), and/or (f) progressive loss of weight and strength. 3. Thereafter, the issue on appeal should be readjudicated. The Veteran and his representative should be provided with a Supplemental Statement of the Case ("SSOC"). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs