Citation Nr: 1030294 Decision Date: 08/12/10 Archive Date: 08/24/10 DOCKET NO. 04-44 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a chronic kidney disorder as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for chronic hypertension as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from March 1966 to February 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This case was last brought before the Board in April 2009, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDINGS OF FACT 1. The competent evidence of record does not indicate the Veteran is currently diagnosed with a chronic kidney disorder. 2. Chronic hypertension was not caused or chronically worsened by the Veteran's service-connected type II diabetes mellitus. CONCLUSIONS OF LAW 1. A chronic kidney disorder is not proximately due to or aggravated by service-connected diabetes mellitus. 38 U.S.C.A. §§ 1113, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2009). 2. Chronic hypertension is not proximately due to or aggravated by service-connected diabetes mellitus. 38 U.S.C.A. §§ 1113, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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. 38 U.S.C.A. § 5103(a) (West 2002). 38 C.F.R. § 3.159 (2009). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran received proper notification through February 2004 and December 2007 VCAA letters. These notice letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The December 2007 VCAA letter provided such notice. 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. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2009). Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. He was afforded VA examinations in February 2003 and August 2008. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2009); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). These VA examinations are sufficient for the purposes of determining service connection, as they involved a review of the claims file in addition to a physical examination of the Veteran, and provide an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Finally, the Board again notes the instant claims were remanded in November 2007 and April 2009 for additional development. In this regard, the Board determined that a VA examination was required, which was provided in August 2008. Further, the Board determined that the AOJ should attempt to obtain clarification from the Veteran's private physician regarding an etiological opinion he rendered in January 2004. The AOJ requested that the Veteran provide the necessary information and medical release in order to contact his private physician. See April 2009 notice letter. A supplemental letter was received from the Veteran's private physician in May 2010. Therefore, the Board finds there has been substantial compliance with its prior remands. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. 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 favors the Veteran. Initially, the Board observes the Veteran has indicated he is claiming entitlement to service connection only on a secondary basis. See, e.g., September 2002 claim for benefits. Further, the Board notes that direct service connection is not raised by the record. As such, the Board will not address the issue of direct service connection. With respect to secondary service connection, the Veteran contends that suffers from a chronic kidney disorder and chronic hypertension that was proximately caused by his service-connected type II diabetes mellitus. Alternatively, he argues that these conditions have been aggravated by his service-connected type II diabetes mellitus. In support of his claim, the Veteran has submitted a January 2004 statement from Dr. Hudock, a private physician. In his statement, Dr. Hudock notes he is treating the Veteran for diabetes type II and it is his belief that there is a 50 percent or better chance that both hypertension and early stages of kidney disease are secondary to his diabetes mellitus. As noted above, the Veteran was provided VA examinations in February 2003 and August 2008 to determine whether the Veteran suffers from a chronic kidney disorder and whether any such disorder and his currently diagnosed hypertension is etiologically related to his diabetes mellitus. After reviewing the Veteran's medical history and examining the Veteran, the February 2003 VA examiner opined that the Veteran's hypertension was not caused by his diabetes mellitus. Furthermore, the August 2008 VA examiner found that, after reviewing the claims file and examining the Veteran, there is no evidence of nephropathy at this time. Finally, the August 2008 VA examiner opined that the Veteran's hypertension is unrelated to his diabetes, noting that the hypertension was diagnosed several years prior to the diagnosis of diabetes combined with the fact that there is no evidence of diabetic nephropathy. Finally, the Veteran submitted a second statement from Dr. Hudock in May 2010. In this statement, Dr. Hudock noted that the Veteran was first treated in his office in 2002, at which time he was diagnosed with moderate to severe hypertension, with no secondary causes diagnosed. Further, Dr. Hudock noted that he is unaware of any common mechanism whereby diabetes causes hypertension, and he has no data to conclude that the Veteran suffers from hypertension other than essential hypertension compounded by obesity. Finally, Dr. Hudock noted that no significant kidney disease was present in 2002, or subsequently. In deciding whether the Veteran suffers from a chronic kidney disorder and if any such disorder and his hypertension is etiologically related to his service-connected type II diabetes mellitus, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Here, there are legitimate reasons for accepting the August 2008 VA unfavorable medical opinion over the favorable statement by Dr. Hudock. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Also, a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). While the January 2004 statement by Dr. Hudock indicates the Veteran suffers from early stage kidney disease and this condition, along with hypertension, are secondary to his service- connected diabetes mellitus, Dr. Hudock does not offer any rationale for this opinion. In this regard, Dr. Hudock does not reference any evidence of record in stating the Veteran suffers from early stage kidney disease, nor does he acknowledge the Veteran suffered from hypertension several years prior to the first diagnosis of diabetes mellitus. As such, Dr. Hudock's January 2004 statement is not probative enough to warrant entitlement to service connection. See Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). Furthermore, the Board again observes that Dr. Hudock's May 2010 statement indicates the Veteran does not suffer from a kidney disease nor is his hypertension caused by his service-connected diabetes. In comparison, the August 2008 VA opinion offer a rationale for the opinions. With respect to a kidney disorder, the VA examiner notes a review of the record and physical examination of the Veteran reveals no nephropathy. Further, the VA examiner noted the Veteran suffered from hypertension for several years prior to the diagnosis of diabetes. Thus, the Board finds that the August 2008 VA medical opinion is accordingly more probative than the January 2004 statement by Veteran's private physician. The Board acknowledges that the Veteran himself has claimed that he suffers from a kidney disorder and his currently diagnosed hypertension is the result of or has been aggravated by his service-connected type II diabetes mellitus. However, as a layperson, the Veteran has no competence to give a medical opinion on the diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran currently suffers a chronic kidney disorder. To prevail on the issue of service connection, there must be medical evidence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). Furthermore, the Board also finds a preponderance of the competent, probative evidence of record weighs against the Veteran's assertion that his service-connected type II diabetes mellitus is the proximate cause of or has aggravated his currently diagnosed hypertension. A VA physicians has opined that the Veteran's hypertension predated his diabetes mellitus and therefore is not caused or aggravated by diabetes mellitus. Further, the Board found the private medical opinion submitted by the Veteran is not probative evidence upon which service connection may be granted. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claims for service connection for a chronic kidney disorder and chronic hypertension, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). ORDER Service connection for a chronic kidney disorder is denied. Service connection for chronic hypertension is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs