Citation Nr: 1018784 Decision Date: 05/20/10 Archive Date: 06/04/10 DOCKET NO. 04-44 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to secondary service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) had active military duty from March 1969 to October 1970. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2007, the Board issued a decision denying four separate claims perfected for appeal. In May 2008, the Clerk of the US Court of Appeals for Veterans Claims (Court) approved a joint motion of the appellant and VA General Counsel which conceded all other issues on appeal with the exception of whether the Veteran's nonservice-connected hypertension was aggravated (increased in severity beyond ordinary progress) by service-connected DM II. The joint motion required remand for another examination with review of the claims folder and a request for an opinion in this regard consistent with the Veterans Claim Assistance Act (VCAA). The Court Clerk's order remanded "that part of the BVA's decision that denied service connection for hypertension, to include as secondary to diabetes mellitus...for compliance with the instructions of the joint motion..." The joint motion only raised the issue of whether hypertension was aggravated by service-connected DM II. The joint motion in no way raised or questioned the Board's previous denial of service connection for hypertension as being incurred or aggravated in service, or being manifested to a compensable degree within one year after service separation. Accordingly, no further inquiry with respect to these theories of entitlement need be addressed. The case was REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC in August 2008. The Board is also satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT Hypertension is not due to or aggravated by a service- connected disability. CONCLUSION OF LAW The criteria for secondary service connection for hypertension have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA 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 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2003 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also sent a letter in October 2008. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in October 2008, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA outpatient treatment records dated from 2001 to 2009. The Veteran was also afforded VA examinations in connection with his claim. See 38 C.F.R. § 3.159(c)(4) (2009). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are more than adequate. The examinations provided adequate basis for making a determination in this claim. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Significantly, neither the Veteran nor his representative has 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. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Secondary Service Connection Service connection may be granted for a disability which is proximately due to and the result of a service-connected disease or injury. 38 C.F.R. § 3.310. A secondary service connection claim requires competent medical evidence to connect the asserted secondary condition to a service- connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); see Jones (Wayne) v. Brown, 7 Vet. App. 134, 136-37 (1994). Secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310 and compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 and under the new regulation VA will not concede aggravation unless there is a baseline for the claimed disability shown by medical evidence created prior to the claimed aggravation. 71 Fed. Reg. 52,747 (Sept. 7, 2006) (now codified at 38 C.F.R. § 3.310). Although there was an amendment to § 3.310, the Veteran filed his claim prior to October 10, 2006, the effective date of the change. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). The more liberal version is applicable to the appeal as the new version would have impermissible retroactive effect. See VA O.G.C. Prec. Op. No. 7-2003. A new law or regulation applies, if at all, only to the period beginning with the effective date of the new law or regulation. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In VAOPGCPREC 7-2003, VA's General Counsel held that when a new statute is enacted or a new regulation is issued while a claim is pending, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely "retroactive effects." If applying the new provision would produce such "retroactive effects," VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce "retroactive effects," VA ordinarily must apply the new provision. A new law or regulation has prohibited "retroactive effects" if it is less favorable to a claimant than the old law or regulation; while a liberalizing law or regulation does not have "retroactive effects." VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (2004). The General Counsel had previously summarized the proper analysis as follows: First, the Board must determine, on a case-by-case basis, whether the amended regulation is more favorable to the claimant than the prior regulation. Second, if it is more favorable, the Board must, subsequent to the effective date of the liberalizing law under 38 U.S.C. § 5110(g), apply the more favorable provision to the facts of the case, unless the claimant would be prejudiced by the Board's actions in addressing the revised regulation in the first instance. Third, the Board must determine whether the appellant would have received a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation, including for the periods both prior to and after the effective date of the change in law. VAOPGCPREC 3- 2000 (2000); 65 Fed. Reg. 33422(2000). The Federal Circuit has created a three-part test to determine whether a new law has prohibited retroactive effects: (1) "the nature and extent of the change of the law;" (2) "the degree of connection between the operation of the new rule and a relevant past event;" and (3) "familiar considerations of fair notice, reasonable reliance, and settled expectations." Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005). If, under this test, a rule or regulation appears to have a retroactive effect, then the rule or regulation cannot be applied to cases pending at the time of its promulgation. Rodriguez v. Peake, No. 2006-7023 (Fed. Cir. Jan. 7, 2008). The new version of the regulation imposes additional requirements to establish service connection on the basis of aggravation. Hence it appears to have retroactive effects, and the Board will apply the old version of 38 C.F.R. § 3.310. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds 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 claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has claimed service connection for hypertension as secondary to his service connected diabetes mellitus. Secondary service connection may be awarded if a nonservice- connected disorder is due to or aggravated by a service- connected disability. The Board will address both theories of entitlement. In order warrant service connection, the evidence would need to show that the Veteran's service-connected diabetes disability either proximately caused or aggravated his hypertension. Allen, supra. The evidence does not reflect that this is the case. The Veteran has a current diagnosis of hypertension, and he is service-connected for diabetes mellitus. It is noted that the Veteran's November 2003 VA hypertension examination report notes blood pressure readings of 142/78 when lying, 130/78 when sitting, and 120/76 when standing. The examiner had reviewed the claims file and examined the Veteran. The examiner's impression was that the Veteran currently has well-controlled hypertension. In the November 2003 hypertension examination report, the VA examiner stated his opinion that the Veteran's hypertension was not caused by the diabetes mellitus, that there was no evidence of renal neuropathy. He stated that the diabetes and hypertension were diagnosed at approximately the same time, and the Veteran had no evidence of diabetic nephropathy. The Veteran was again examined by VA in November 2009. The claims file was reviewed. It was noted that hypertension was diagnosed in 2000 the same year of diabetes mellitus, and the Veteran was started on medication at that time. His blood pressure readings were 174/100, 164/92, and 160/95. The diagnosis was, hypertension, primary. The examiner noted that in reviewing the records, the Veteran's BUN was 21 and his creatine was 1.34, very very slightly elevated. His EGFR was 57.8 and his glucose was 376. Additional tests including a urine study, chest X-ray and electrocardiogram were done. It was found that microalbumin was normal, BUN was normal CRB was normal, and a CXR was normal. An EKG showed a bundle branch block. The examiner opined that the Veteran's hypertension is at least as likely as not primary. He stated that there is no evidence of diabetic nephropathy and therefore hypertension is not at least as likely as not aggravated by diabetes mellitus II. The Board has reviewed the VA outpatient treatment records in the file dated from 2001 to 2009. While they reflect treatment for various complaints including hypertension and diabetes mellitus, there is nothing in that evidence that indicates that the Veteran's hypertension is due to or aggravated by service. None of the evidence shows that the service connected diabetes mellitus either caused or aggravates the Veteran's hypertension. However there is evidence in the file which indicates that there is no relationship between the Veteran's hypertension and his diabetes mellitus based on causation or aggravation. In this regard, the November 2003, a VA examiner opined that the Veteran's hypertension was not caused by, his service- connected diabetes and the November 2009 VA examiner opined that the Veteran's hypertension is not aggravated by his service-connected diabetes. These opinions were reached after a review of the medical records and the claims file, as well as an examination of the Veteran. The examiners offered rationale for their findings, and the opinions stand uncontradicted in the record. Thus, they are found to be persuasive. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Therefore, service connection on a secondary basis by direct causation or by aggravation is not warranted. 38 C.F.R. § 3.310. As noted, the Veteran has contended his hypertension is due to his service-connected diabetes. Under certain circumstances, a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, as a layperson, the Veteran is not competent to render opinion regarding etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). While lay witnesses are competent to describe experiences and symptoms that result therefrom, because laypersons are not trained in the field of medicine, they are not competent to provide opinions relating to the diagnosis or etiology of diseases or disabilities. Id; Therefore, the Board will give more credence to the medical evidence found in the record than his lay assertions as to the etiology of his hypertension and whether it is aggravated by his diabetes mellitus. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). For the reasons and bases provided above, the evidence in this case is against the claim for service connection. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107 (West 2002). ORDER Secondary service connection for hypertension is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs