Citation Nr: 1010983 Decision Date: 03/23/10 Archive Date: 03/31/10 DOCKET NO. 04-11 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. J. Janec, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was the subject of a June 2008 Order of the Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand of the parties dated in May 2008, and vacated the Board's May 2007 decision. In April 2009, the Board remanded the case for further evidentiary development in accordance with the directives in the Joint Motion. The case has now been returned for appellate review. FINDING OF FACT The medical evidence is in equipoise on the question of whether the Veteran's hypertension is proximately due to his service-connected diabetes mellitus. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, hypertension is proximately due to the service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307. 3.309, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit other evidence that may be relevant to the claim. The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In light of the decision herein granting the benefit sought, the Board finds that any error with regard to the VCAA duties to notify and/or assist are harmless. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2009). The regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2009). Certain chronic disabilities, such as hypertension, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2009). Secondary service connection may be granted for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2006). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 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 caused or aggravated by a service-connected disability. Allen, supra, at 488. (The Board notes that effective October 10, 2006, 38 C.F.R. § 3.310 was amended; however, under the facts of this case the regulatory change does not impact the outcome of this appeal). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2009). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that service connection is warranted for hypertension. In order to establish service connection on a direct incurrence basis, the veteran must provide evidence of a current disability, and in-service injury or disease, and a nexus between the current disability and in-service injury or disease. The service treatment records are negative for any complaints or findings of high blood pressure or hypertension. On his entrance examination in September 1965, as well as on his discharge examination in August 1967, the Veteran exhibited blood pressure readings which were not identified as abnormal. Moreover, the medical records show that the disease was initially manifested to a degree of 10 percent or more, decades after his separation from active duty, and there is no medical opinion relating the disability to his military service. Hence, in the absence of continuity of symptomatology or a medical nexus, direct or presumptive service connection has not been established. 38 C.F.R. §§ 3.303, 3.307, 3.309(a). In order to establish service connection on a secondary basis, the evidence must show that (1) a current disability exists and (2) the current disability was either caused or aggravated by a service-connected disability. The record reflects that the Veteran is currently service connected for diabetes mellitus, and that he has been diagnosed with hypertension. In support of his claim, the Veteran submitted several internet articles that discuss the relationship between hypertension and high blood pressure. In April 2003, a VA fee-basis examiner, after a review of the Veteran's claims file, opined that the Veteran's current hypertension was not secondary to his diabetes mellitus because he was diagnosed with both diseases at the same time. According to the examiner, the hypertension was a separate disease entity. Upon VA examination in June 2009, the VA examiner noted that the Veteran's treatment records revealed that he was told he had elevated blood sugar as early as 1981. Hence, the examiner concluded that it was likely that the Veteran had undiagnosed, untreated diabetes mellitus since that time. The examiner noted that the Veteran was diagnosed with hypertension in 1996. The examiner opined that the Veteran's hypertension was caused by or related to his service- connected diabetes mellitus because uncontrolled diabetes mellitus is associated with hypertension. In considering the record, the Board finds that evidence is in equipoise on the question of whether there is a relationship between the Veteran's service-connected diabetes mellitus and his hypertension. Therefore, the claim of entitlement to service connection for hypertension secondary to service-connected diabetes mellitus is granted. See 38 C.F.R. § 3.102, Gilbert, supra. ORDER Service connection for hypertension secondary to service- connected diabetes mellitus is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs