Citation Nr: 1008331 Decision Date: 03/05/10 Archive Date: 03/11/10 DOCKET NO. 04-03 278A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service connected disabilities, such as diabetes mellitus, dermatitis, or posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia (RO), which in pertinent part, denied service connection for hypertension. In subsequent rating actions, the RO denied service connection for hypertension, to include as secondary to service-connected disabilities. This claim was previously before the Board in November 2006, when the matter was remanded to schedule a VA examination to arrive at an opinion as to the likely etiology of the Veteran's hypertension and to send the Veteran the required notice under the Veterans Claims Assistance Act of 2000 (VCAA). When the claim returned to the Board in June 2009, the Board determined that there was noncompliance with its November 2006 remand instructions, and the Board was compelled to remand the claim again. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. Hypertension was not shown in service, at separation, or for many years thereafter. 2. There is no medical evidence on file linking hypertension directly to any aspect of the Veteran's period of service. 3. The preponderance of the competent medical evidence is against a finding that the Veteran's hypertension is proximately due to service-connected diabetes mellitus, PTSD, or dermatitis. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA sent letters to the Veteran in October 2003 and November 2006 that addressed the notice elements concerning his claim. The October 2003 notice letter informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. In the November 2006 notice letter, VA has also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although both notices were sent after the initial adjudication, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the October 2003 and November 2006 letters fully complied with the requirements of 38 U.S.C. § 5103(a), 38 C.F.R. § 3.159(b), and Dingess, supra, and after these notices were provided the case was readjudicated and an November 2009 supplemental statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. VA provided the Veteran with medical examinations in February 2005 and September 2008, and a VA medical opinion in September 2009. In the reports from these examinations, the examiners addressed the issue of whether the Veteran's hypertension was related to his service, to include as secondary to a service- connected disability. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection Factual Background The Veteran seeks service connection for hypertension. In particular, he asserts that his hypertension is secondary to his service-connected diabetes mellitus, PTSD and/or dermatitis. Under VA rating criteria, the term, hypertension, means that diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). A review of the service treatment records show does not show any treatment, complaints or diagnosis of hypertension during service. At the time of the Veteran's entrance into service, a June 1967 examination report shows that his heart and vascular system were evaluated as normal. The Veteran's blood pressure reading (BPR) was 134/84. A June 1968 service treatment record shows that the Veteran was admitted and treated for pyoderma and exfoliative dermatitis. The service treatment records also contain the March 1970 examination report prior to separation that shows the Veteran's heart and vascular system were again evaluated as normal. At the time of the examination, the Veteran's BPR was 136/88. On the associated medical history report, the Veteran did not mark any symptomatology that would indicate hypertension. The Veteran's service treatment records from his Reserve service continue to show that the Veteran's heart and vascular system were evaluated as normal. See May 1975 and February 1979 examination reports. In May 1975, his BPR was reported as 110/70, and in February 1979, it was reported as 140/88. The claims folder next contains the Veteran's private treatment records beginning in August 1992. An April 1993 private treatment record shows the Veteran's BPR was 150/80. A subsequent private treatment record shows he was diagnosed with hypertension in May 1996, but it does not report any BPRs at that time. The private and VA treatment records continue to show treatment for hypertension. None of these records indicates any etiology for the Veteran's hypertension. In February 2005, the Veteran was afforded a VA examination. In that examination report, the examiner noted that the Veteran reported the onset of his hypertension was in 1978 and that the Veteran had been diagnosed with diabetes mellitus in 2002. The examiner noted the Veteran's hypertension medication and reported that his BPR was 130/80. The examiner diagnosed the Veteran with hypertension. The examiner concluded that since the Veteran's hypertension was diagnosed 24 years prior to the diagnosis of diabetes mellitus, the hypertension was not caused by diabetes mellitus. As noted by the Board in its November 2006 remand, the Veteran's claims folder was not available at the time of the February 2005 examination report and the examiner failed to opine whether the hypertension was aggravated by diabetes mellitus. In the November 2006 remand, the Board also noted that the Veteran had submitted several medical articles which indicated a relationship between hypertension and medication used to treat exfoliative dermatitis. The Board instructed the RO to remand for a new VA examination. Pursuant to the instructions of the Board's November 2006 remand, the Veteran was afforded another VA examination in September 2008. In that examination report, the examiner noted that the claims folder was available and reviewed. The examiner noted the Veteran reported the onset of his hypertension was 1978 and the examiner noted the Veteran was diagnosed with diabetes mellitus in 2002. The Veteran denied a history of smoking and alcohol use, but reported a positive family history of hypertension and heart disease. Based on the examination findings, the examiner found that the Veteran's hypertension was not caused by his diabetes mellitus, because hypertension was diagnosed 24 years prior to his diabetes mellitus. In regard to aggravation issue, the September 2008 VA examiner noted that she had discussed the issue with an endocrinologist and reviewed the current medical literature regarding the association between hypertension and diabetes mellitus. The examiner opined "there is no clear cause and effect relationship noted," but the examiner noted that several factors have been proposed to contribute to hypertension in diabetic patients which include diabetic nephropathy, hyperinsulinemia, and volume expansion and increased arterial stiffness. The examiner noted that the Veteran did not have diabetic nephropathy, but the examiner could not conclude without resorting to mere speculation whether the other diabetic factors have aggravated the Veteran's hypertension. The September 2008 VA examiner did not address whether the Veteran's hypertension was etiologically related to medication for his dermatitis, and the Board remanded for another VA medical opinion. The Veteran had submitted several medical articles that discussed the medical complications of PTSD. The Veteran asserted that his hypertension was proximately caused by his PTSD. In the Remand, the Board instructed the RO to ask the VA examiner to address whether the Veteran's hypertension was related to his PTSD. The Veteran underwent another VA examination in September 2009. The same VA examiner again reviewed the claims folder and noted the Veteran's reported medical history. The VA examiner first addressed whether the Veteran's hypertension was etiologically related to any medications taken to treat his dermatitis. The examiner noted that the Veteran's service treatment records showed he was admitted in June 1968 for pyoderma and exfoliative dermatitis, and that he was treated with pHisoHex baths, Neosporin ointments, and systemic antibiotics. The Veteran was subsequently treated with Aquaphor and alpha Keri-synalar mixture. The examiner noted that the medical literature revealed a relationship between hypertension and intravenous (IV) and oral steroids, but there was no indication that the Veteran received any IV or oral steroids as treatment for his skin condition. The VA examiner next addressed whether the Veteran's hypertension was related to his service-connected PTSD. The examiner noted that a review of the medical literature did not show any causal link between PTSD and hypertension, and the examiner concluded that it was less likely than not that hypertension was caused or aggravated by PTSD. The VA examiner last addressed whether the Veteran's hypertension was caused or aggravated by his diabetes mellitus. The examiner again precluded a direct link between the Veteran's hypertension and his diabetes mellitus. The examiner was unable to conclude whether the Veteran's hypertension was aggravated by any diabetic factors. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. In addition, certain chronic diseases, including hypertension, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A 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. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Analysis Initially, the Board notes that the Veteran does not contend (nor does the evidence of record support a finding) that his hypertension is directly due to service. The evidence of record does not show hypertension in service, at separation, or for many years afterward. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The record shows that the Veteran reported the onset of his hypertension was in 1978, but the February 1979 examination report does not show any finding of hypertension. The first medical evidence of hypertension is not shown until 1996. It is noted that the date of both the reported onset and the first medical evidence are well beyond first year after the Veteran's discharge from service. This lengthy period without treatment for related conditions is evidence against a finding of continuity of hypertension since service, and it weighs heavily against a claim for service connection on a direct basis. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Further, there is no competent medical evidence linking hypertension directly to service. The evidence does not support a finding that the Veteran's hypertension is directly related to service. See 38 C.F.R. § 3.303 Turning back to the Veteran's specific contention in this matter - a claim of secondary service connection - the remaining question is whether the medical evidence supports, or is at least in equipoise as to, the Veteran's assertion that his hypertension is related to his service connected diabetes mellitus, PTSD and/or dermatitis. See 38 C.F.R. § 3.310. Here, the weight of the medical evidence is against such a finding. Both of the VA examiners found that the Veteran's hypertension was not caused by his diabetes mellitus, because his hypertension was diagnosed prior to diabetes mellitus. In the September 2009 VA examination report, the examiner determined that hypertension was not related to the medication taken for dermatitis, because the Veteran had not been treated with IV or oral steroids. The same VA examiner also opined that based on a review of medical literature that the Veteran's hypertension was not etiologically related to his PTSD. There is no medical opinion of record which shows the Veteran's hypertension is etiologically caused by his diabetes mellitus, dermatitis and/or PTSD. In regard to the issue of aggravation, in both the September 2008 and the September 2009 VA examination report, the same VA examiner could not conclude that the Veteran's hypertension was aggravated by his diabetes mellitus. It was noted that several diabetic factors could aggravate hypertension, but in the end, the VA examiner could not determine without resorting to mere speculation that the Veteran's hypertension was as likely as not aggravated by his diabetes mellitus. The Board finds that the VA examiner's opinion regarding the possibility of aggravation is speculative in nature. At best, the VA examiner's opinion provides that the Veteran's hypertension may be aggravated by his diabetes mellitus. Service connection may not be based on a resort to speculation or remote possibility, such as indicated by that opinion. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). A number of Court cases have provided discussion on this point of weighing medical opinion evidence. See, e.g., Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the Veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). The Board has considered the Veteran's own assertions, including his submission of medical literature regarding a possible connection between hypertension and diabetes mellitus, PTSD, and/or dermatitis. The Board finds that his assertions are afforded no probative weight in the absence of evidence that the Veteran has the expertise to render opinions about medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998). As to the general medical literature that is not specific to the Veteran, this has little probative value in this issue. The selections describe the possible link between hypertension and diabetes mellitus, PTSD and/or dermatitis. Nonetheless, the articles do not even purport to address the facts of the individual case under consideration. See Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that treatise evidence cannot simply provide speculative generic statements not relevant to the veteran's claim," but, "standing alone," must include "generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion"). The documents supplied by the Veteran simply provide speculative generic statements. As mentioned above, service connection cannot be based on speculative medical evidence. Further, while medical treatise evidence can provide important support when combined with an opinion of a medical professional, in the instant case, as discussed above, a supportive nexus opinion is not of record. Mattern v. West, 12 Vet. App. 222, 228 (1999). Therefore, in the absence of probative and competent evidence that links the evidence to the Veteran's claim, the aforementioned excerpt lacks probative value in the consideration of the Veteran's particular claim. The Board also notes that the Veteran has submitted an excerpt from a December 2005 Board decision pertaining to another veteran, in which that veteran's hypertension was found to be linked to diabetes mellitus. The facts and findings in the prior Board decision pertain to that veteran's case and not to the case at hand. While it appears that the excerpt from the prior Board decision indicates that another Veterans Law Judge accepted medical evidence showing a link between that veteran's hypertension and his diabetes mellitus, any finding in that prior Board decision is based on evidence associated with the record of that veteran in that other appeal. The Board is not bound by findings found in previous Board decisions. Further, any finding made in that prior Board decision only pertains to the veteran who submitted that appeal. Such a finding is based on the evidence related to that veteran's medical records and the evidence in that veteran's claims file. That decision does not provide any specific findings or evidence to establish a link between this Veteran's hypertension and his diabetes mellitus. In sum, hypertension is not shown to be directly related to service and the preponderance of the medical evidence of record is against a finding that the Veteran's hypertension is due to his service connected diabetes mellitus, PTSD and/or dermatitis. See 38 C.F.R. § 3.310. As shown above, the VA examiners ruled out the likelihood that the Veteran's hypertension is caused by his diabetes mellitus, PTSD or dermatitis. Additionally, there is no competent medical evidence showing that the Veteran's hypertension was aggravated by his diabetes mellitus. The claim must be denied. See Hickson, 12 Vet. App. at 253. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs