Citation Nr: 1301653 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-36 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II. 2. Entitlement to an initial evaluation in excess of 10 percent disabling for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issue of entitlement to an initial evaluation in excess of 10 percent disabling for peripheral neuropathy of the right lower extremity is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Hypertension is not related to the Veteran's military service or to a service-connected disorder, to include diabetes mellitus, type II. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred, and was not proximately due to or the result of or aggravated by a service-connected disorder. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). 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 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. Here, the duty to notify was satisfied for the service connection claim by way of a letter sent to the Veteran in July 2005 that addressed most notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Although the notice did not address either the rating criteria or effective date provisions that are pertinent to the Veteran's claim, such error was harmless given that service connection for hypertension is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. The duty to assist has also been satisfied in this case as the RO has obtained the Veteran's service, VA, and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board has reviewed the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Notably, the Virtual VA file includes VA treatment records that have not been reviewed by the RO or VA's Appeals Management Center. However, the treatment records are cumulative of the evidence considered at the time of the October 2012 supplemental statement of the case. Further, the Veteran submitted a waiver of RO review of additional evidence in November 2012; therefore, a remand for initial RO review is not necessary. 38 C.F.R. § 20.1304 (2012). The Veteran was provided an opportunity to set forth his contentions during the hearing before the Board in November 2011 and he was afforded VA medical examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the April 2012 VA examination report for hypertension shows that the examiner reviewed the claims file, examined the Veteran, and provided an opinion supported by rationale. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Service Connection The Veteran seeks service connection for hypertension, to include as secondary to his service-connected diabetes mellitus, type II. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For certain chronic disorders, including hypertension, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, any disability which is proximately due to, or results from, another disease or injury for which service-connected has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). . In this case, the Veteran served in the Republic of Vietnam from November 1966 to July 1967, and is therefore presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii); see also 38 U.S.C.A. § 1116(a)(4) (West 2002); 38 C.F.R. § 3.307(a)(6)(i). However, hypertension is not listed among the diseases presumed due to herbicide exposure. See 38 C.F.R. § 3.309(e). VA has determined that there is no positive association between exposure to herbicides and any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). In December 2010, VA specifically determined that a presumption of service connection for hypertension based on herbicide exposure was not warranted. 75 Fed. Reg. 81332 (Dec. 27, 2010). Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection for a disease averred to be related to herbicide exposure with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994); see also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). The Veteran has not alleged and the evidence of record does not show that hypertension is secondary to herbicide exposure. Further, there is no evidence or argument that hypertension was diagnosed or manifest during active service. The separation examination reflected a blood pressure reading of 134/84. Moreover, the April 2012 VA examination report indicates that the Veteran did not meet the criteria for a diagnosis of hypertension at any time during service and per the Veteran's statements, hypertension was diagnosed well after separation from service. Thus, the examiner opined that his condition was not caused or aggravated by active military service. The Veteran has not argued and the medical evidence does not show that hypertension manifested within one year of separation from service. The Veteran has indicated and the medical evidence shows that hypertension had onset in 1999, approximately 29 years after separation from service. As for entitlement to service connection on a secondary basis, the competent and credible evidence fails to show that hypertension had onset due to service-connected diabetes mellitus, type II or that this condition aggravated his hypertension. VA examination reports from August 2004 and November 2010 address the etiology of the Veteran's hypertension; however, the opinions are not supported by rationale. Therefore, the examination reports and opinions are not adequate. However, in the April 2012 VA examination report, the examiner opined that the Veteran's hypertension was not proximately due to or the result of, or aggravated by his service-connected diabetes mellitus, type II. The examiner stated that the evidence showed that hypertension pre-existed the onset of diabetes mellitus, type II by several years and there was no evidence that it aggravated hypertension. The examiner said the Veteran's hypertension had been controlled and that the amount of medication needed to control the condition had been stable and had not progressed beyond the natural progression of the disease. The Board has also considered the Veteran's November 2011 testimony before the Board. He testified that when discharged from service, he was told his blood pressure was too high and that he needed to follow-up. He did not seek medical attention and was not diagnosed until 1999, at which time his hypertension was out of control. He was prescribed one medication at that time. In 2004, when he was diagnosed with diabetes mellitus, type II, he was prescribed two medications for hypertension. In this case, the Veteran is competent to state when his hypertension was diagnosed and to describe his treatment. Because he has consistently maintained and the evidence supports his assertion of onset and diagnosis as 1999, the Board finds his statements as to this aspect of his claim credible. However, to the extent he asserts that his current hypertension is related to his military service, or due to or aggravated by a service-connected disability, the Board finds that as a layperson his statements are not competent evidence on the etiology or aggravation of a disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Whether hypertension was due to service or was the result of or aggravated by a service-connected disorder, cannot be observed by laypersons and the evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent etiological opinions or opinions concerning aggravation. Id.; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Consequently, lay assertions of medical etiology or aggravation of hypertension cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Based on the foregoing, service connection for hypertension, including as secondary to service-connected diabetes mellitus, type II, must be denied. The competent and credible evidence shows that hypertension did not have onset during service or within one year of separation from service. Further, hypertension had onset prior to the onset of diabetes mellitus, type II and diabetes mellitus, type II has not aggravated hypertension beyond the natural progression of the disease. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. 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, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, is denied. REMAND The Veteran seeks an initial evaluation in excess of 10 percent disabling for peripheral neuropathy of the right lower extremity. In a March 2012 Board remand, the Board ordered that a VA examination be scheduled to determine the nature and severity of the Veteran's peripheral neuropathy. A VA examination was conducted in April 2012; however, the examiner addressed the sciatic and femoral nerves instead of the common peroneal nerve. The Veteran's service-connected peripheral neuropathy of the right lower extremity is rated as neuritis of the peroneal nerve. Accordingly, the Board finds the VA examination inadequate for rating purposes and that the claim must be remanded for a new VA examination. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examination to determine the current severity of his service-connected peripheral neuropathy of the right lower extremity. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. An electromyogram must be conducted to determine the nerve(s) involved. All pertinent symptomatology and findings should be reported in detail. After review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state a. whether the manifestations of the Veteran's peripheral neuropathy of the right lower extremity are organic and/or sensory in nature; and b. whether the Veteran's peripheral neuropathy of the right lower extremity manifests as complete paralysis with foot drop and slight droop of the first phalanges of all toes, cannot dorsiflex the foot, extension of proximal phalanges is lost, abduction of foot is lost and adduction is weakened, with anesthesia covering the entire dorsum of the foot and toes; and c. whether the Veteran's peripheral neuropathy of the right lower extremity manifests as incomplete paralysis that is mild, moderate, or severe in degree. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim on appeal. If the benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs