Citation Nr: 1005705 Decision Date: 02/16/10 Archive Date: 02/25/10 DOCKET NO. 02-10 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Thomas J. Reed, Attorney at Law ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970, to include service in the Republic of Vietnam from August 1969 to September 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware, which denied service connection for hypertension. A December 2005 Board decision denied the Veteran's claim for an increased rating for peripheral neuropathy of the left lower extremity, denied his claim for service connection for hypertension as secondary to service-connected diabetes mellitus, and remanded his claim for service connection for posttraumatic stress disorder (PTSD). The Veteran appealed the hypertension claim to the United States Court of Appeals for Veterans Claims (Court). In November 2007, the Court issued an order which granted a joint motion of the parties for remand and to vacate the Board's December 2005 denial of service connection for hypertension as secondary to service- connected diabetes. A copy of the motion and the Court's Order has been incorporated into the claims files. In October 2008 the Board remanded claims for service connection for a psychiatric disorder, to include PTSD, and service connection for hypertension secondary to service- connected diabetes mellitus, to comply with the Veterans Claims Assistance Act of 2000 (VCAA), obtain VA outpatient treatments, and obtain a VA nexus opinion. Thereafter, an October 2008 rating decision confirmed and continued a 20 percent rating for the Veteran's service- connected diabetes mellitus. In February 2009 he filed a notice of disagreement (NOD) to the October 2008 rating decision. In April 2009 he filed another NOD to a March 2009 rating decision which also confirmed and continued a 20 percent rating for service-connected diabetes mellitus. As yet, no statement of the case (SOC) has been issued addressing this matter. A September 2009 rating decision granted service connection for PTSD and assigned an initial disability rating of 70 percent, both effective May 25, 2001, and discontinued a total disability rating based on individual unemployability due to service-connected disabilities, effective December 2, 2004, the date that the Veteran's combined disability rating reached 100 percent. In a September 2009 letter the Veteran's attorney thanked the RO for addressing the Veteran's claim for diabetes mellitus, for addressing his PTSD claim, and granting the Veteran a 100 percent schedular rating. An October 2009 rating decision confirmed and continued the 20 percent rating for diabetes mellitus. Although the Veteran did not disagree with the initial 70 percent rating assigned for PTSD, the issue of the evaluation of PTSD "w/polysubstance abuse, currently 70 percent disabling" was addressed in an October 2009 supplemental statement of the case (SSOC) as was the issue of service connection for hypertension secondary to service-connected diabetes mellitus. Despite the fact that the October 2009 SSOC addressed an issue of the rating assigned for PTSD, because service connection was granted by the September 2009 rating decision that grant constituted a complete grant of the benefit sought on appeal, which was service connection for PTSD. To initiate an appeal as to the initial disability rating assigned for PTSD upon granting service connection, a separate NOD would have to have been filed. As there is no jurisdiction conferring NOD as to the downstream element of the initial disability rating assigned, no such issue is now in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, a new issue may not be addressed for the first time in an SSOC. See 38 C.F.R. § 19.31(a) (in no case will an SSOC be used to announce RO decisions on issues not previously addressed in an SOC, or to respond to an NOD on newly appealed issues that were not addressed in an SOC). Accordingly, the matter of the propriety of the initial 70 percent disability rating assigned for PTSD is not before the Board. The only issue now developed for appellate resolution is entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus. The issue of entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The preponderance of the competent medical evidence establishes that the Veteran's hypertension is aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW Hypertension is aggravated by service-connected diabetes mellitus. 38 C.F.R. § 3.310(b) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In light of the favorable disposition, further discussion here of compliance with the VCAA with regard to the claim for service connection for hypertension is not necessary. Law and Regulations Secondary service connection may be granted for a disability that is proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310(a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, 38 C.F.R. § 3.310 was amended to include 38 C.F.R. § 3.310(b) to conform with Allen, additionally, other substantive changes were made. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice- connected disease or injury was aggravated by a service- connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). As for secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service- connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Background Service medical records are negative for any complaint, treatment, or diagnosis of hypertension. Indeed, a September 1970 separation examination report reflects a blood pressure of 120/70 and normal cardiac findings. Post service, August 1986 and March 1987 private hospitalization reports contain no mention of hypertension. In this regard, both reports reflect a normal physical exam. The earliest report of record is a VA mental health clinic note dated May 1999 (beyond the presumptive one-year period for chronic diseases under 38 C.F.R. § 3.307). A November 2002 letter from Dr. C of VA reflects that, secondary to diabetes mellitus, the Veteran is being treated for hypertension. An April 2003 VA examination report reflects the Veteran's reported history of being diagnosed with hypertension at least 10 years ago. A May 2003 memo from Dr. S, also of VA, states that hypertension is not caused by diabetes mellitus. An August 2003 memo from Dr. O, a VA physician coordinator, states that diabetes does not cause hypertension but it is well known that the two conditions often occur together. Dr. O added that this has been referred to in the literature as syndrome X and it was a very common finding. Dr. O concluded that, while we may not be able to say that diabetes caused the Veteran's hypertension, it was likely that the two conditions were causally related. In May 2009 the Veteran's claim files were reviewed by a VA physician, pursuant to the October 2008 Board remand. The diagnoses were diabetes mellitus, hypertension; hyperlipidemia; obesity; and a past history of heavy chronic ethanol abuse, currently in remission. It was reported that the Veteran had had hypertension and diabetes for the last 16 to 17 years and these had been well controlled. He also had a history of significant obesity and a long history of ethanol abuse and obesity, and these were also risk factors for the development of hypertension or elevation of hypertension. Therefore, the Veteran had three etiologies for his hypertension, which included diabetes, obesity, and prior history of chronic heavy alcohol use. It was difficult to separate the contribution of each of these factors and, therefore, the examiner assigned equal weight to each of them. Therefore, in the examiner's opinion, the Veteran's hypertension might be related to diabetes; however, the contribution appeared to be less than 50 percent. Currently there were no disabilities related to his hypertension as far as the history, physical examination, and the laboratory data could determine. He had normal cardiovascular status. His chest pains were atypical and noncardiac. His shortness of breath appeared to be related to obesity since his pulmonary function testing was found to be normal and he had no cardiac disease. Analysis Proximate Causation The Board must weigh the conflicting medical evidence and may favor the opinion of one competent medical expert over another. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) and Owens v. Brown, 7 Vet. App. 429, 433 (1995). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination or review of limited scope, or where the basis for the opinion is not stated. Other factors for consideration are whether there was a specific medical reasoning, the thoroughness and detail of the opinion, citation to clinical evidence supporting the opinion, and access to the Veteran's claims files. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993); Struck v. Brown, 9 Vet. App. 145, 155 (1996); and Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A summary of the varying opinions in this case is that the 2002 opinion of Dr. C suggests that the Veteran's hypertension was secondary to his service-connected diabetes but states no rationale. On the other hand, the 2003 opinion of Dr. S states the opposite, but also provides no rationale. The 2003 opinion of Dr. O indicates that because the two conditions, diabetes and hypertension, are often found together, called syndrome X, it was likely that the two were causally related. However, Dr. O did not state the degree of probably of such a relationship. The 2009 VA examiner's opinion was that while hypertension might be related to the service-connected diabetes, the likelihood was less than 50 percent, i.e., there was less likely than not a causal relationship. In sum, the only clearly favorable opinion that hypertension is proximately due to service-connected diabetes mellitus is the conclusory statement of Dr. C in 2002. The 2003 opinion of Dr. O is somewhat favorable but the conclusory 2003 opinion of Dr. S is clearly unfavorable. The opinion which carries the most weight is the 2009 VA examiner's opinion, made after reviewing the claim files and which considers other possible etiologies. That opinion is also unfavorable since it finds that the probability of a causal relationship is less likely than not. Thus, as to whether the claimed hypertension is proximately due to or the result of the service-connected diabetes, the preponderance of the competent medical evidence is against this theory of entitlement. Secondary Aggravation Nevertheless, there remains the question of whether the service-connected diabetes aggravates the claimed hypertension. As to this theory of entitlement, there is no unfavorable medical opinion. The 2003 opinion of Dr. S only addresses causation and does not address the question of aggravation of the hypertension by the service-connected diabetes. The 2009 VA examiner's opinion, made after reviewing the claim files and considering other possible etiologies, is favorable because it finds that the service- connected diabetes is one of three possible etiologies (the other two being obesity and a past history of ethanol abuse). Moreover, that examiner assigned equal weight to each of the three potential etiologies. In substance, this can only be interpreted to mean that the service-connected diabetes contributes the current severity of the claimed hypertension. There is no medical opinion on file which contradicts the opinion of the 2009 VA examiner as to this matter, i.e., secondary aggravation. Accordingly, service connection for hypertension is warranted on the basis that the hypertension is aggravated by the Veteran's service-connected diabetes mellitus. ORDER Service connection for hypertension, on the basis of being aggravated by service-connected diabetes mellitus, is granted. REMAND With regard to the claim for a rating in excess of 20 percent for service-connected diabetes mellitus, type II, in a February 2009 NOD the Veteran's attorney specifically disagreed with the RO's October 2008 denial of a rating in excess of 20 percent for the service-connected diabetes mellitus, type II. By filing an NOD, the Veteran has initiated appellate review of this issue. The next step in the appellate process is for the RO to issue to the Veteran an SOC. See 38 C.F.R. § 19.29 (2009); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Consequently, this matter must be remanded to the RO for the issuance of a SOC. The Board emphasizes, however, that to obtain appellate review of an issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2009). Accordingly, the case is REMANDED for the following action: 1. The RO should issue to the Veteran and his attorney an SOC addressing the claim for entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus, type II. Along with the SOC, the RO must furnish to the Veteran a VA Form 9 (Appeal to Board of Veterans' Appeals), and afford him the applicable time period for perfecting an appeal as to this issue. The Veteran and his attorney are hereby reminded that appellate consideration of the matter identified above (entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus, type II) may be obtained only if a timely appeal is perfected. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran and his attorney have 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs