Citation Nr: 1031297	
Decision Date: 08/19/10    Archive Date: 08/24/10

DOCKET NO.  97-20 938	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South 
Carolina


THE ISSUE

Entitlement to service connection for hypertension, to include as 
proximately caused by service-connected diabetes mellitus, type 
II.


REPRESENTATION

The Veteran represented by: The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. J. Houbeck, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1966 to June 1970, from 
July 1970 to June 1986, and from February 1991 to June 1991.

This matter is before the Board of Veterans' Appeals (Board) 
following a February 2005 Order from the United States Court of 
Appeals for Veterans Claims (CAVC) vacating the Board's May 2003 
decision.  This matter was originally on appeal from a January 
1997 Regional Office (RO) in Columbia, South Carolina rating 
decision. 

The Veteran's claim was previously before the Board and remanded 
on multiple occasions, most recently in September 2008.

In addition, the Board notes that the Veteran testified at a 
hearing before an RO representative in April 1998, a transcript 
of which is of record.


FINDING OF FACT

Hypertension was not initially manifested during service or 
within one year of service and was not proximately caused by 
diabetes mellitus, type II, or other incident of service.


CONCLUSION OF LAW

Service connection for hypertension is not warranted.  38 
U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. § 3.310 
(2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009).




REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to notify and assist 

When an application for benefits is received, VA has certain 
notice and assistance requirements under the law.  See 38 
U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a) (West 2002 & Supp. 2009).  First, 
proper notice must be provided to a claimant before the initial 
VA decision on a claim for benefits and must: (1) inform the 
claimant about the information and evidence not of record 
necessary to substantiate the claim; (2) inform the claimant 
about the information and evidence that VA will seek to provide; 
(3) inform the claimant about the information and evidence the 
claimant is expected to provide.  The February 2005 Court Order, 
discussed above, vacated and remanded the Board's May 2003 
decision, in relevant part, so VA could provide the Veteran 
legally adequate notice.  Subsequently, the Veteran was informed 
of the above-noted elements with regard to the claim for service 
connection for hypertension in letters of March 2005, July 2006, 
October 2008, and June 2009.  The Veteran was afforded sufficient 
opportunity to respond and the claim, thereafter, was 
readjudicated in each case.  The Veteran was notified 
specifically how the VA assigns disability ratings and effective 
dates in July 2006, October 2008, and June 2009.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board finds that VA has also fulfilled its duty to assist the 
Veteran in making reasonable efforts to identify and obtain 
relevant records in support of the Veteran's claim and providing 
a VA examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c)(4)(i).  In this regard, the Veteran's service 
treatment records, VA treatment records, and private treatment 
records are associated with the claims file.  

In addition, the Board notes that the February 2005 Court Order 
and July 2006 Board remand also directed the agency of original 
jurisdiction (AOJ) to request records from the Beaufort Naval 
Hospital from June 1986 to June 1998.  A remand by the Board 
confers on the Veteran, as a matter of law, the right to 
compliance with the remand orders.  Stegall v. West, 11 Vet. App. 
268 (1998).  The claims file reflects that such records were 
requested, obtained, and associated with the file, to the extent 
available.

In September 2008, the Board again remanded the case to the AOJ 
for additional development.  In relevant part, the September 2008 
Board remand directed the AOJ to obtain treatment records for the 
Veteran's hypertension from 1986 from all pertinent providers.  
Such development was undertaken.  In addition, the remand 
directed the AOJ to obtain an examination addressing whether any 
current hypertension was related to any symptoms or signs the 
Veteran may have had in service or within one year of service 
separation.  The Board notes that the examination was afforded 
and the requested opinion obtained.  The issue now returns to the 
Board for appellate review. 
 
The Board recognizes a duty to provide a VA examination when the 
record lacks evidence to decide the Veteran's claim and there is 
evidence of (1) a current disability, (2) an in- service event, 
injury, or disease, and (3) some indication that the claimed 
disability may be associated with the established event, injury, 
or disease.  38 C.F.R. § 3.159(c)(4)(i) (2009); see also McLendon 
v. Nicholson, 20 Vet. App. 79 (2006).  A VA opinion with respect 
to the issue on appeal was obtained in an April 2010 compensation 
and pension examination (C&P).  38 C.F.R. § 3.159(c)(4).  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).  As 
discussed in greater detail below, the Board finds that the VA 
opinion obtained in this case is adequate, as it was predicated 
on review of the private and VA medical records in the Veteran's 
claims file, and interview of the Veteran, and an appropriate 
examination.  The examiner considered all of the pertinent 
evidence of record and provided a complete rationale for the 
opinion stated, relying on and citing to the records reviewed.  
Accordingly, the Board finds that VA's duty to assist with 
respect to obtaining a VA examination opinion with regard to the 
issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).

Under the circumstances of this case, "the record has been fully 
developed," and "it is difficult to discern what additional 
guidance VA could have provided to the Veteran regarding what 
further evidence he should submit to substantiate his claim."  
Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  Furthermore, 
as discussed above, the Board finds that there has been 
substantial compliance with its July 2006 and September 2008 
remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 
(1998) (a remand by the Board confers upon the Veteran, as a 
matter of law, the right to compliance with the remand 
instructions, and imposes upon the VA a concomitant duty to 
ensure compliance with the terms of the remand); see also D'Aries 
v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. 
App. 141, 146-47 (1999).  In that regard, the Board notes that 
the April 2010 VA examination report did not explicitly discuss 
whether any signs or symptoms noted within one year of service 
were the first manifestations of hypertension.  However, in 
context, the examiner clearly considered and rejected the notion 
that any such signs or symptoms within one year of separation 
were the first manifestations of hypertension, as evidenced by 
his discussion of the July 1992 VA examination report and the 
failure therein to diagnose hypertension.  Therefore, the Board 
is satisfied that VA has complied with the duty to assist 
requirements of the VCAA and the implementing regulations and the 
record is ready for appellate review.

Standard of review 
 
Once the evidence has been assembled, it is the Board's 
responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  
When there is an approximate balance of evidence regarding the 
merits of an issue material to the determination of the matter, 
the benefit of the doubt in resolving each such issue shall be 
given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 
(2009).  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the 
Court stated that "a veteran need only demonstrate that there is 
an 'approximate balance of positive and negative evidence' in 
order to prevail."  To deny a claim on its merits, the evidence 
must preponderate against the claim.  Alemany v. Brown, 9 Vet. 
App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.



Service connection 

The Veteran contends that his hypertension began in service or, 
alternatively, was proximately caused by his service-connected 
diabetes mellitus and seeks service connection be granted on one 
of those bases.

Generally, service connection may be granted for any disability 
resulting from injury suffered or disease contracted in line of 
duty, or for aggravation in service of a pre-existing injury or 
disease.  38 U.S.C.A. §§ 1110, 1131.  Service connection may be 
established by demonstrating that the disability was first 
manifested during service and has continued since service to the 
present time or by showing that a disability which pre-existed 
service was aggravated during service.  Service connection may be 
granted for any disease diagnosed after discharge from service, 
when all the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  38 C.F.R. 
§ 3.303.

When a chronic disease such as hypertension becomes manifest to a 
degree of 10 percent within one year of the Veteran's discharge 
from service, such disease shall be presumed to have been 
incurred in service, even though there is no evidence of such 
disease during the Veteran's period of service.  38 U.S.C.A. 
§§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.   
 
To establish a right to compensation for a present disability on 
a direct basis, a Veteran must show: "(1) the existence of a 
present disability; (2) in-service incurrence or aggravation of a 
disease or injury; and (3) a causal relationship between the 
present disability and the disease or injury incurred or 
aggravated during service."  Shedden v. Principi, 381 F.3d 1163, 
1167 (Fed. Cir. 2004).  

Any 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.  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 (a) caused by or (b) aggravated by a service-connected 
disability.  38 C.F.R. § 3.310(a) (2006); Allen v. Brown, 7 Vet. 
App. 439 (1995).

The Board observes that the provisions of 38 C.F.R. § 3.310 were 
amended effective as of October 20, 2006, during the pendency of 
the instant appeal.  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 service-
connected one is judged.  Although the 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 Veteran 
to establish a pre-aggravation baseline level of disability for 
the non-service connected disability before an award of service 
connection based on aggravation may be made.  This had not been 
the VA's practice and thus suggests that the recent change 
amounts to a substantive change in the regulation.  For this 
reason and as the Veteran's claim was pending before the 
regulatory change was made, the Board will consider his claim 
under the prior version of 38 C.F.R. § 3.310 as it is more 
favorable to the Veteran.

The Veteran's service treatment records include dozens of blood 
pressure readings.  Several readings during service were 
elevated.  In April 1969, the Veteran had a blood pressure of 
148/108 and the Veteran complained of headaches.  In February 
1977, the Veteran's blood pressure was 136/72 slightly over three 
(3) hours after an automobile accident.  In February 1980, the 
Veteran's blood pressure was 120/84, when the Veteran complained 
of back pain, extremity soreness, and general malaise.  In April 
1982, the Veteran's blood pressure was 116/86 after a knee injury 
playing softball.  After suffering a right hand injury in May 
1983, the Veteran had a blood pressure of 130/70.  He had an 
observed blood pressure of 110/86 in March 1984 after being hit 
in the mouth playing basketball and suffering a lacerated upper 
lip.  The Veteran had tenderness and swelling of his left thumb 
and blood pressure readings of 126/94 and 110/80 in October 1984.  
In February 1985, the Veteran's blood pressure was 130/70 when he 
was assessed with pneumonia.  In July 1985, the Veteran suffered 
a deep laceration of the shin and had blood pressures of 162/80 
and 124/86.  During a follow-up visit in August 1985 to remove 
the sutures in his shin, the Veteran's blood pressure was 118/80.  
The Veteran's blood pressure was 124/85 in August 1985 during a 
follow-up for a laceration of the right eye.  In April 1986, the 
Veteran's blood pressure was 110/80.  The Veteran suffered a left 
eye injury in May 1986 and had a blood pressure of 140/82.  The 
Veteran had many additional blood pressure readings lower than 
those listed.  In March 1991, for example, the Veteran denied a 
history of high blood pressure and on contemporaneous examination 
his blood pressure was 104/68.

After the Veteran's service, in October 1991 his blood pressure 
was 132/92; in March 1992, 142/87; in April 1992, 118/86 and 
158/88.  During intervening treatment visits, the Veteran often 
had significantly lower blood pressure readings.  In July 1992 
the Veteran was afforded a general VA examination.  At that time 
his blood pressure measured 128/80.  The VA examiner did not 
diagnose hypertension at that time, or otherwise discuss the 
Veteran's blood pressure.  

The Veteran had continued treatment over the following years and 
was first diagnosed with hypertension in approximately August 
1995, after which time his treatment providers attempted to 
control the disorder with medication.  Treatment records also 
indicate that the Veteran was diagnosed with diabetes mellitus, 
type II, in approximately April 1995.

In April 2010, in accordance with the directives of the Board's 
September 2008 remand, the Veteran was afforded a VA examination 
for his hypertension.  The examiner noted review of the claims 
file and medical record.  The examiner noted that the Veteran had 
52 blood pressure readings during service and that four of these 
would be considered elevated.  With respect to those four 
readings, the examiner noted that one was from 1977 following a 
motor vehicle accident, one from 1969 following an acute injury 
of the hand involving swelling, and injuries in 1984 and 1985 
involving emergency room treatment for acute medical problems.  
The examiner noted the July 1992 VA examination wherein the 
Veteran's blood pressure was 128/80 and that the examiner had not 
diagnosed hypertension or otherwise discussed the Veteran's blood 
pressure with him.  The Veteran reported initial notification of 
high blood pressure in 1995, from which time he had been 
prescribed medication.  Based on the foregoing, the examiner 
concluded that it was clear that the Veteran's hypertension was 
not related to his military service.  Moreover, the examiner 
opined that the Veteran's hypertension was not caused or 
aggravated by his service-connected diabetes mellitus, type II, 
or any other service-connected disability.  In that regard, the 
examiner noted that the latest diagnostic evidence of record 
indicated a normal BUN and creatinine with no evidence of end-
stage renal disease, as one would expect to find if the diabetes 
had caused or aggravated the hypertension.

For compensation purposes, the VA has defined hypertension as a 
diastolic blood pressure that is predominantly 90 mm. or greater, 
or systolic blood pressure that is predominantly 160 mm. or 
greater with a diastolic blood pressure of less than 90 mm.  To 
support a diagnosis of hypertension, the blood pressure readings 
must be taken two or more times on at least three different days.  
See 38 C.F.R. § 4.104, Diagnostic Code 7101 (Note 1). 
 
Initially, the Board observes that no diagnosis of hypertension 
was made in service, and that the observed blood pressure 
readings in service would not otherwise support a diagnosis of 
hypertension as defined under Diagnostic Code 7101 (Note 1).  Nor 
is there evidence of blood pressure readings that would support a 
diagnosis of hypertension within one year of service.  
Significantly, the Veteran received regular treatment during 
service and immediately after service, yet he was not diagnosed 
with hypertension until many years after service, in 1995.  In 
that regard, the Board notes that the Veteran initially claimed 
that he was diagnosed with hypertension either in service or 
within one year of service.  See, e.g., April 1998 RO hearing 
transcript.  However, the most recent evidence of record, 
specifically the Veteran's reported onset during the April 2010 
VA examination, indicates that the Veteran recognizes that he was 
not diagnosed with hypertension until 1995. 

The Board notes that the April 2010 VA examiner specifically 
considered whether the Veteran's current hypertension was caused 
or aggravated by his military service and concluded that 
hypertension was not related to service in any way.  The examiner 
reviewed the Veteran's claims file and medical records, 
interviewed the Veteran, and conducted appropriate examination.  
Based on the foregoing, the examiner concluded that the Veteran's 
current hypertension was unrelated to his military service.  The 
examiner provided a sufficient rationale for his opinion, noting 
the Veteran's multiple non-elevated blood pressure readings in 
service, explained the reason for the Veteran's four elevated 
readings in service, and noted the July 1992 VA examination one 
year after service where the examiner had not diagnosed, or even 
discussed, hypertension.  As such, the Board finds the examiner's 
opinions credible and probative.  As will be discussed in greater 
detail below, to the extent that the Veteran claims that his 
hypertension is directly related to his military service, the 
Board finds the April 2010 examiner's opinion to be significantly 
more probative in light of the examiner's much greater level of 
medical training and experience.  Given the foregoing, service 
connection on a direct basis is not warranted.  

Nor is presumptive service connection under the provisions of 38 
C.F.R. §§ 3.307 and 3.309 warranted, as the Veteran was not 
diagnosed with hypertension in service or within one year of 
service.

Service connection for diabetes mellitus is in effect, from 
August 1996.  As noted above, the Veteran contends that his 
hypertension was proximately caused by diabetes.  The Board has 
considered, therefore, whether the Veteran's current hypertension 
is proximately due to or the result of his service-connected 
diabetes mellitus, type II.  Based on the evidence of record, the 
Board concludes it is not.

The Board finds the opinions expressed in the April 2010 VA 
examiner's report to be credible and probative.  The report was 
based on an interview of the Veteran, his reported medical 
history, appropriate diagnostic testing, and physical 
examination.  Further, a complete and through rationale is 
provided for the opinions rendered.  As noted, the examining 
physician found that the Veteran's normal BUN and creatinine 
levels and the absence of any indication of end-stage renal 
disease made it unlikely that the Veteran's service-connected 
diabetes mellitus caused or aggravated his hypertension.  The 
examiner's conclusion is fully explained and consistent with the 
evidence of record.  In that regard, the Board specifically finds 
that the April 2010 examiner's opinion contemplated and rejected 
both that the Veteran's hypertension was caused by his military 
service, to include his service-connected disabilities and 
specifically diabetes, or had been permanently aggravated by the 
same.  The examiner's notation that the Veteran's hypertension 
was not caused by or related to the above clearly contemplated 
both causation and aggravation. 
 
The Board acknowledges the Veteran's assertions that his 
hypertension is the result of his diabetes mellitus, type II.  
Certainly, the Veteran can attest to factual matters of which he 
had first-hand knowledge and symptoms experienced through the 
senses, and his testimony in that regard is entitled to some 
probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 
368 (2005).  In general, however, a layperson is not competent to 
diagnose a medical disorder or render an opinion as to the cause 
or etiology of any current disorder because he does not have the 
requisite medical knowledge or training.  See Rucker v. Brown, 10 
Vet. App. 67, 74 (1997) (stating that competency must be 
distinguished from weight and credibility, which are factual 
determinations going to the probative value of the evidence).  In 
this instance, therefore, the Veteran as a lay person has not 
been shown to be capable of making medical conclusions, 
especially as to complex medical diagnoses such as a link between 
his hypertension and service-connected diabetes mellitus, type 
II.  Thus, his statements regarding any such link are much less 
probative than the conclusions of the VA health care specialist 
discussed above.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. 
Cir. 2007) (explaining in footnote 4 that a veteran is competent 
to provide a diagnosis of a simple condition such as a broken 
leg, but not competent to provide evidence as to more complex 
medical questions).  To the extent that the Veteran believes that 
his hypertension is related to any other remote incident of 
service, the Board similarly affords substantially greater weight 
to the opinion of the April 2010 examiner. 

In conclusion, the physician rendering the April 2010 VA medical 
opinion clearly reviewed the Veteran's medical history, 
interviewed the Veteran, and offered a detailed rationale for his 
opinions.  No other medical professional has opined a link 
between the Veteran's hypertension and his service-connected 
diabetes mellitus, type II.  Thus, the Board finds the April 2010 
opinion to be competent and the most persuasive of record.  As 
such, service connection cannot be granted for the claimed 
disability on a secondary basis. 

In light of the foregoing, the Board finds that the preponderance 
of the evidence is against the claim, and 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).  The appeal must therefore be denied. 
 


ORDER

Service connection for hypertension is denied.





____________________________________________
HEATHER J. HARTER
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs