Citation Nr: 1301154 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 09-40 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1971. This appeal comes before the Board of Veterans' Appeals (Board) from January 2008 and November 2008 rating decisions of a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a hearing before the Board by videoconference from the RO in November 2012. A transcript of the hearing is associated with the claims file. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered. FINDING OF FACT 1. The Veteran served in the Republic of Vietnam in 1969-70 and is presumed to have been exposed to the designated herbicide agents. 2. The Veteran was diagnosed with diabetes mellitus in 2004. The disease is service-connected. 3. The Veteran's hypertension first manifested in 2007, greater than one year after active service, and was not caused or aggravated by any aspect of service or by service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension are not met. 38 U.S.C.A. § 1101, 1110, 1111, 1112, 1137 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In November 2007, the RO provided a notice that did not meet all the requirements. The Veteran articulated his claim as entitlement for service connection on a secondary basis from service-connected diabetes mellitus. The RO provided the relevant criteria and the Veteran's and VA's respective responsibilities to obtain relevant evidence. The RO failed to provide all the criteria for service connection on a direct basis. After the initial decision on the claim, in June 2008, the RO provided a notice that met the requirements followed by readjudication of the claim in a November 2008 rating decision, in an October 2009 statement of the case, and in three supplemental statements of the case. In written statements and testimony at hearings at the RO and before the Board, the Veteran provided evidence addressing the onset of symptoms in service as well as causation or aggravation on a secondary basis. The Board concludes that the notice timing error was not prejudicial because the Veteran had actual knowledge of the relevant criteria with an opportunity to respond during the pendency of the appeal. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has also obtained medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The Veteran served as a U.S. Army personnel specialist with combat duty in the Republic of Vietnam from May 1969 to April 1970. The Veteran was awarded the Bronze Star Medal. There is no service personnel record evidence that the Veteran was assigned duties handling or dispersing herbicide agents. He contends that he experienced high blood pressure in service and that his current hypertension was caused or aggravated by service-connected diabetes mellitus. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, such as hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). For secondary service connection on the basis of aggravation, a baseline level of severity of the disorder must be established by medical evidence to determine the extent of aggravation, if any, as well as any increased due to the natural progression of the disease. 38 C.F.R. § 3.310 (b). A veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time in the case of certain diseases. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In July 2009, the NAS issued "Veterans and Agent Orange: Update 2008" (Update 2008). Based upon Update 2008 and prior NAS reports, the Secretary of Veterans Affairs determined that a presumption of service connection for hypertension based on exposure to herbicides in the Republic of Vietnam is not warranted. See 75 Fed. Reg. 81,331 (Dec. 27, 2010). Even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, VA must also consider the claim on a direct service-connection basis. When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Hereafter, all blood pressure measurements are expressed as systolic pressure divided by diastolic pressure in units of millimeters of mercury (mmHg). Service treatment records are silent for any symptoms, diagnoses, or treatment for high blood pressure or hypertension with one exception. In April 1969 while in transit between duty stations, the Veteran received treatment for stomach pain. A clinician noted that the Veteran had a recent episode of heavy alcohol use. Blood pressure was measured as 150/80. There was no diagnosis of hypertension and no evidence of follow-up treatment for the single high measurement. In a June 1970 screening for dental care, the Veteran denied any history of high blood pressure. In an August 1970 discharge physical examination, the Veteran denied any history of high blood pressure, dizziness, or fainting spells. Blood pressure was 130/70. Post service VA outpatient treatment records from 1984 to 1990 are silent for any symptoms of high blood pressure or diagnoses of hypertension. Blood pressure was recorded on 27 occasions from March 1984 to December 1990. All measurements were normal with one exception. In August 1987, the Veteran received treatment for an anxiety reaction and blood pressure was measured as 150/94 during this episode. Blood pressure was normal on seven subsequent occasions through December 1990. VA outpatient treatment records from April 1998 to September 2007 show eleven blood pressure measurements that were all normal. In April 2002, a primary care physician noted that the Veteran was being followed for hypertension. However, there are no high blood pressure measurements, clinical assessments, diagnoses, or prescribed medications for the two year period of time before or after this notation. A problem list dated in March 2007 did not contain hypertension. The Veteran reported that he was diagnosed with diabetes mellitus in August 2004 and the diagnosis was first noted in VA records in October 2004. In December 2004, a VA physician noted a review of the claims file and evaluated the Veteran's diabetes. The physician noted the Veteran's report that he denied any diagnosis or treatment for hypertension. Blood pressure was 135/86. In February 2005, the RO granted service connection for diabetes mellitus on a presumptive basis based on exposure to herbicide in Vietnam. In an October 2007 claim, the Veteran reported that he had been prescribed medication for hypertension by his VA primary care physician starting in September 2007. In a March 2008 statement, the Veteran noted that his first onset of hypertension was in 2007. In a March 2010 RO hearing, the Veteran reported that he had never been told by anyone or treated in service for high blood pressure. In August 2008, a VA physician noted that the claims file was not available but that his review of the VA electronic medical records showed that the Veteran was diagnosed with hypertension in 2000, that an April 2002 clinical noted also showed hypertension, and that his blood pressure was measured as 149/85 in mid-December 2007 when the Veteran was prescribed medication. Although the claims file contains VA outpatient treatment records from 2000 through 2010, the particular entries cited by the physician are not in the claims file. The physician concluded that the April 2002 notation was likely erroneous and that a diagnosis of arterial hypertension "is not well established." The physician noted the Veteran's Vietnam service and the diagnosis of diabetes in 2004. He concluded, "Hypertension is not caused or be the result of Diabetes mellitus." In an October 2009 substantive appeal, the Veteran noted that he intended to seek a private medical opinion that diabetes caused his hypertension. After September 2007, blood pressure was measured in the normal range on five occasions with the use of medication. The measurements were predominantly less than 120/70. In a May 2011 VA general medical examination, blood pressure was normal, and the physician noted that the disorder was well controlled. In a November 2012 Board hearing, the Veteran stated that he was told by field medics in Vietnam that his blood pressure was high but that he did not receive any treatment. He stated that he experienced episodes of dizziness while assigned to a duty station in the United States after his service in Vietnam but prior to his military discharge. He stated that he sought VA treatment for hypertension in 1971 within one year of discharge from service from the same VA physician who diagnosed hypertension in 2007. The Veteran acknowledged that no medical care provider had ever told him that his hypertension was caused or worsened by diabetes. The Board concludes that service connection for hypertension is not warranted on a direct or presumptive basis. The Veteran is competent to report on the information from field medics that he had high blood pressure in Vietnam, that he experienced dizziness later in service, and that he sought treatment within one year of service. The Board concludes that these reports are not credible because they are inconsistent with the service treatment records and with his own statements to the in service clinicians and examiners, VA clinicians, and to the RO in his original claim and hearing testimony. The great weight of the credible evidence is that the Veteran was diagnosed with diabetes in 2004 and with hypertension not earlier than 2007. Public records of the VA primary care physician's state license showed that this physician did not graduate from medical school until 1978 and did not obtain a license to practice in the Veteran's state until 2001. Notations in VA records in 2000 and 2002 cited by the VA examiner in 2008 appear to be erroneous as the notations are inconsistent with the remainder of the VA records of medical care. Therefore, the Board concludes that the Veteran's hypertension first manifested greater than one year after active service. As noted above, the presumption of service connection for hypertension based on exposure to herbicide is not available, and there is no competent medical evidence of record to establish a relationship in the Veteran's individual case. The Board further concludes that service connection for hypertension secondary to diabetes mellitus is not warranted. The Board places probative weight on the opinion provided by the VA physician in 2008 who evaluated the VA electronic medical records and noted the Veteran's lay reports of his history of a diagnosis and start of medication in September 2007. The physician concluded that the Veteran's hypertension was not caused by diabetes. The Board considered whether an additional opinion is necessary to determine if diabetes aggravated the Veteran's hypertension. The history of blood pressure measurements since service and particularly since the onset of diabetes in 2004 showed that the Veteran's blood pressure was predominantly normal throughout. In September 2007 three years after the onset of diabetes, the blood pressure was reportedly measured on one occasion as 149/85, only slightly above normal, and much less than 160 systolic or 90 diastolic pressure. After the start of medication, blood pressure was significantly below the previously recorded stable levels. Moreover, the Veteran acknowledged at his hearing that his blood pressure did not worsen after the onset of diabetes. Therefore, the Board concludes from this review of blood pressure measurements both before and after 2004 and despite the conservative diagnosis in 2007 with the start of medication, the weight of credible evidence is that the Veteran's blood pressure did not undergo an increase in disability because of diabetes. The Veteran did not obtain a contrary opinion from a private physician. The weight of the credible and probative evidence demonstrates that the Veteran's current stable hypertension first manifested greater than one year after service and is not related to his active service or secondary to service-connected diabetes mellitus. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs