Citation Nr: 1304427 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-40 689A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to January 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In a January 2009 rating decision, the Veteran was granted service connection for diabetes mellitus and assigned a rating of 20%, effective date January 13, 2008. In a July 2009 rating decision, the Veteran was denied service connection to hypertension, claimed as secondary to diabetes mellitus. Review of Virtual VA reveals no pertinent documents. FINDINGS OF FACT 1. Hypertension was not present in service or manifested within one year after separation, and there is no competent medical evidence showing that the current hypertension condition is related to military service or to service-connected diabetes mellitus. 2. Diabetes mellitus is manifested by a need for regular insulin medication, a restricted diet, and restrictions on the Veteran's occupational activities, but not by episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be separately compensable. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hypertension, to include as secondary to service-connected diabetes mellitus, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. With resolution of reasonable doubt in the appellant's favor, the schedular criteria for a rating of 40 percent, but no more, for diabetes mellitus have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.7, 4.119, Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a January 2009 letter the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran to submit evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability and the effect that the disability has on his employment. The notice also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The case was last adjudicated in October 2010. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, private medical records, VA treatment records, the report of a VA examination and accompanying addenda and notes, and statements of the Veteran. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection for Hypertension Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be competent evidence of a current disability; competent evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). 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). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id; see also 38 C.F.R. § 3.310(b). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran claims that he has hypertension (high blood pressure) which is caused by his service-connected diabetes mellitus. He has indicated that he has been receiving treatment for hypertension since 1975 or 1978. The Veteran's service treatment records are silent for any mention of complaint or treatment for hypertension, and the Veteran himself has indicated that he was not aware of or diagnosed with hypertension until several years after separation from service. Private medical records show treatment of hypertension from March 1976 to March 2009, which has been largely controlled through careful monitoring of diet, exercise, and oral medications. The Veteran's VA treatment records from the Schenectady Community-Based Outpatient Clinic (CBOC) show that his hypertension is under control but has been regularly monitored, and in December 2008 a home blood pressure monitor was ordered for the Veteran to aid in that monitoring. The Veteran received a VA examination in February 2009. The Veteran reported that he was diagnosed with hypertension in 1975 and was diagnosed with diabetes in May 1995. The Veteran reported taking oral medication for hypertension since the time it was first diagnosed. After examining the Veteran, the examiner diagnosed him with hypertension and opined that it was not caused by his diabetes because of the onset of hypertension preceded his diabetes, but also noted that it was a condition that was worsened or increased by diabetes. To demonstrate that his hypertension did not significantly precede his diabetes, the Veteran submitted test results from a glucose tolerance test administered in December 1977 which showed that he had elevated glucose levels as early as 1977. The Veteran argued in his November 2009 notice of disagreement that although he was not diagnosed with diabetes until many years later, he actually suffered from diabetes much earlier, at a time more closely coinciding with his diagnosis of hypertension. In March 2010 VA requested an addendum opinion from the February 2009 VA examiner. The examiner wrote that the Veteran's hypertension was less likely than not a result of diabetes and that because the December 1977 glucose tolerance test report did not contain the Veteran's name and did not show abnormal renal laboratory results, no nexus between diabetes and hypertension could be established and indicated that the condition was less likely as not caused by or a result of diabetes. The examiner also wrote that hypertension can be aggravated by diabetes because it adversely affects the arteries, predisposing them to atherosclerosis, but he could not determine a baseline of symptoms to determine the level of aggravation. The co-signing physician of the VA examination further clarified the opinion in an April 2010 e-mail, writing that because there is no way to measure a baseline of the Veteran's hypertension before diabetes, there is no way to fully know what aggravation diabetes has caused. But it was the examiner's opinion that "it would be none, based on the same degree of suboptimal control of both conditions." After the Veteran's private treatment records for hypertension from 1976 to 2009 were received by VA, these records and the entire claims file were submitted to the co-signing physician of the VA examination for review and an additional addendum opinion. The physician wrote that the Veteran's diabetes did not cause or aggravate his hypertension. Based on a review of the records, the physician found that hypertension began many years before the diagnosis of diabetes and that "the natural history of this condition is to increase with age as it indeed played out over the years with first increases and later changes in antihypertensive medication in a caterpillar movement as time advanced." The physician noted that the Veteran's weight gain paralleled the increase in hypertension. After the Veteran was diagnosed with diabetes, he began to control his blood sugar and to lose weight, and this also aided in his hypertension control, as did his increasing doses of a newly introduced class of antihypertensive medication. In light of the evidence of record discussed above, the Veteran has failed to provide any competent evidence of a nexus between his hypertension and an in-service injury or event or between his hypertension and his diabetes mellitus, and there is currently no basis that would allow for a grant of service connection for hypertension. The evidence in favor of this claim consists of lay statements by the Veteran that his actually diabetes mellitus began at least 20 years prior to its diagnosis in 1995 and that this condition was the cause of his diabetes mellitus. The Veteran has not supplied or identified that there exists any medical evidence supporting this assertion other than 1977 blood test results which the VA examiner found to be insufficient to establish a diagnosis of diabetes at that time. The Veteran has also not identified any medical professional who has concurred with his assertion that his hypertension was caused or aggravated by diabetes mellitus or provided any medical evidence indicating that it was. The Board notes that a veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). While the Veteran may be competent to report the manifestation of certain symptoms of hypertension, he is not competent to provide a medical nexus opinion regarding the cause or aggravating factors of his hypertension. As indicated above, this claim turns on the medical matter of nexus to service or to diabetes mellitus, a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant has not been shown to be other than a layperson without the appropriate medical training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on a medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. With regard to service connection for hypertension on a direct basis, the Board reiterates that the Veteran's service treatment records are negative for any complaints, diagnoses, or treatment of hypertension. In addition, there is no evidence that the Veteran's hypertension manifested within 1 year of discharge from service, nor has he asserted that it did. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. There is therefore no evidence which would allow for a grant of service connection on a direct or presumptive basis. Regarding whether the Veteran's hypertension has been caused by or aggravated by his diabetes mellitus, the record contains only one examination report on the etiology of the Veteran's hypertension, that of the February 2009 VA examination and its numerous addendum opinions. The February 2009 VA examiner and the co-signing physician both reviewed the Veteran's claims file, and the physician also reviewed the additional private medical records from March 1976 to March 2009 that were submitted by the Veteran. The examiner performed a thorough examination of the Veteran and discussed his history with him, and there is no indication that either the examiner or the co-signing physician failed to consider any evidence that was available to them or that they failed to provide adequately thorough discussion of the Veteran's condition. In March 2010 the co-signing physician noted that diabetes mellitus can aggravate hypertension, but stated that in this Veteran's case, no such aggravation had occurred. The examination report was followed by several addenda explaining the rationale behind the finding, including the September 2010 addendum which very thoroughly examined the Veteran's private medical records since 1976 and explained how the only observable relationship between the Veteran's hypertension and diabetes mellitus is that the diet and weight loss that he underwent had a concurrently positive affect on his hypertension, with no signs of aggravation by diabetes mellitus. The Board finds that the February 2009 examination report and addendum opinions constitute probative evidence on the medical nexus questions, based as they were on review of the Veteran's documented medical history, assertions, and examination and supported by medical evidence of record. The Board also points out that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In short, as there is no competent and credible evidence that hypertension was incurred in service or within a year of separation from service, nor is there any competent and credible evidence indicating that the Veteran's hypertension was caused or aggravated by a service-connected condition, the preponderance of the evidence is against the claim for service connection for hypertension. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Increased Rating for Diabetes Mellitus Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321 (2012), an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). For diabetes mellitus requiring insulin and restricted diet, or; requiring an oral hypoglycemic agent and a restricted diet, a 20 percent rating is warranted. For diabetes mellitus requiring insulin, a restricted diet, and regulation of activities, a 40 percent rating is warranted. For diabetes mellitus, requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, a 60 percent rating is warranted. Regulation of activities is described as "avoidance of strenuous occupational and recreational activities." 38 C.F.R. § 4.119, Code 7913. The Veteran is currently rated at 20 percent for service-connected diabetes mellitus. The Veteran works as a Civil Engineer Contractor for the Federal Emergency Management Agency. He has stated that his ability to perform his job is significantly impacted by his diabetes mellitus. In his November 2009 notice of disagreement, the Veteran wrote that because he suffers from dizziness at low glucose levels, he "should not be doing inspections on ladders, building roofs, and bridges." The Veteran argues that due to these activity restrictions which impact his occupational functioning, he meets the requirement of "regulation of activities" and therefore warrants a higher 40 percent rating. The Board has reviewed the medical evidence of record, and after consideration of the evidence, the Board is in agreement with the Veteran that a 40 percent rating, but no more, for diabetes mellitus is warranted. As will be discussed below, the current symptoms more nearly approximate the 40 percent rating than the currently assigned rating. The Veteran's VA treatment records show that a December 2008 physical examination report indicated that the Veteran had "good control per history" of his diabetes and was receiving insulin through a private provider. The Veteran has submitted his history of prescription claims through his private health insurance, which shows that he has received prescriptions for pramlintide acetate injections, insulin, and syringes. The Veteran's private medical records show that he is being treated regularly for diabetes and takes medication in order to control it. In April 2007 he reported to his doctor that he did not want to take too much insulin because he needed to do physical labor and walk in dangerous locations, such as rooftops. The private records indicate that the Veteran's diabetes was well controlled due to medication, proper diet, and exercise. In February 2009 the Veteran was afforded a VA examination. The Veteran reported that he was diagnosed with diabetes in May 1995 and had been treated with insulin injections since April 2006. The Veteran reported having episodes of hypoglycemia reactions and ketoacidosis, but none that required hospitalization. He reported that he was on a restricted diet and that he had secondary symptoms of occasional blurred vision, peripheral neuropathy, and erectile dysfunction. The examiner diagnosed the Veteran with Type II diabetes mellitus and stated that for much of the duration of the Veteran's diabetes, it had been poorly controlled, and this was the cause of his retinopathy, peripheral neuropathy, and erectile dysfunction. The examiner noted that diabetes had "significant effects" on the Veteran's occupation because as a civil engineer he can no longer work on bridges due to dizziness which the Veteran attributes to hypoglycemia. In a March 2010 addendum written by the February 2009 examiner, he stated that the Veteran's contention that he could not perform occupational inspections due to dizziness was "not relevant to avoiding strenuous activity to prevent hypoglycemia." In April 2010 the physician co-signer of the VA examination wrote in a follow-up e-mail that the Veteran's dizziness was not necessarily related to hypoglycemia, but that the evidence of record "would suggest that the veteran has been required to limit activity for the purpose of diabetic control." In a further follow-up e-mail, a Veterans Service Center Supervisor reported that the physician had informed him that the Veteran did not need regulation of his activities to control diabetes. This e-mail, however, was not accompanied by any explanation or rationale and was also not supplied by the examiner or other medical professional, and is therefore not considered to be a probative medical opinion to be considered in this case. Based on the evidence described above, the Veteran has been shown to meet or approximate all three requirements for a rating of 40 percent for diabetes mellitus. 38 C.F.R. § 4.119, Code 7913. He is on a restricted diet, requires insulin, and has had to modify his activities due to diabetes mellitus. While the February 2009 examiner correctly pointed out that the Veteran has not had to regulate his activity by avoiding strenuous activity to avoid hypoglycemia, 38 C.F.R. § 4.119, Code 7913 does not require that this be the specific reason why the veteran in question's activities are regulated. The Veteran has amply shown, through his own statements and his physician's, that his diabetes mellitus requires him to avoid certain occupational activities due to the physical danger that feeling dizzy while standing on a bridge or tall building would pose. This is sufficient to show that his current symptoms more nearly approximate the criteria for a 40 percent rating. 38 C.F.R. § 4.7. Thus, while he need not avoid strenuous activity in recreational activity, there seems to be general agreement that there is some restriction on his occupational activity. There is no basis, however, to warrant a higher rating of 60 percent, as the criteria for the 60 percent rating have not been demonstrated or asserted by the Veteran. The Veteran's records show that his diabetes mellitus, which was previously poorly controlled, is currently being well controlled by diet, exercise, and medication. The record shows no instances of the Veteran being hospitalized for any complications of diabetes, and the Veteran has not reported any past hospitalizations. The Veteran is treated by his private diabetic care provider no more than 4 times per year. The Veteran has filed separate claims for additional complications from diabetes mellitus, included diabetic retinopathy, erectile dysfunction, and peripheral neuropathy. These disorders were granted service connection in July 2009 and have been provided with separate rating evaluations. While the Veteran has also complained of the additional complication of dizziness, this added symptom alone would be insufficient to warrant evaluation under the 60 percent criteria. The Veteran, therefore, does not meet the criteria for a 60 percent rating, and an initial rating of 40 percent, but no more, for diabetes mellitus is granted. Finally, the evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The overall disability picture with respect to the service-connected diabetes mellitus does not show any significant impairment beyond that contemplated by the 40 percent rating, the criteria for which match precisely with the symptoms the Veteran has described. As such, the Veteran's disability picture is contemplated by the rating schedule and those criteria are adequate to address his symptoms and average impairment of earning capacity. Id.; Thun v. Peake, 22 Vet. App. 111 (2008). Thus, referral of this issue for consideration on an extraschedular evaluation is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for hypertension is denied. An initial rating of 40 percent, but no more, for diabetes mellitus is granted, subject to the controlling regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs