Citation Nr: 1305288 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 08-31 819 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to the service-connected Type II diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. During his active military service, the Veteran received, in pertinent part, the Purple Heart Medal and Combat Infantryman Badge (CIB). The Veteran also served in the Republic of Vietnam during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the benefit sought on appeal. The Veteran then perfected a timely appeal. In his October 2008 Substantive Appeal (on VA Form 9), the Veteran requested a hearing before a Veterans Law Judge (VLJ) of the Board. In a subsequent July 2010 letter, the Veteran stated that he wished to withdraw his request for a hearing. Accordingly, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). In December 2010, the Board remanded this appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. The case has now been returned to the Board for appellate disposition. The RO certified this appeal to the Board in February 2012. Subsequently, additional lay and medical evidence was added to the record. However, the Veteran waived his right to have the RO initially consider this evidence in a statement dated in February 2012. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. FINDING OF FACT Hypertension was caused by service-connected Type II diabetes mellitus. CONCLUSION OF LAW The criteria for service connection on a secondary basis for hypertension are met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, the Board is granting the claim on appeal. Thus, there is no prejudice to the Veteran and no further discussion of the VCAA is required. II. Service Connection The Veteran seeks entitlement to service connection for hypertension, as secondary to his service-connected Type II diabetes mellitus. Service connection may be established for a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, 3.304. Service connection requires: (1) evidence of a current disorder; (2) evidence of in-service incurrence or aggravation of an injury or disease; and, (3) evidence of a nexus between the current disorder and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. As noted above, the first element of secondary service connection requires evidence of a current disorder. Here, a current diagnosis has been established. On VA examination in August 2007, the Veteran was diagnosed with hypertension. Thus, the Veteran has satisfied the first element of secondary service connection. As stated above, the second element of secondary service connection requires evidence of a service-connected disability. Here, the Veteran is currently service-connected for, in pertinent part, Type II diabetes mellitus. Thus, the Veteran has satisfied the second element of secondary service connection. As previously mentioned, the third element of secondary service connection requires nexus evidence establishing a connection between the service-connected disability and the current disorder. Here, the only nexus opinions of record on the issue of secondary service connection are positive. A supporting letter dated in October 2008 by a VA nurse practitioner asserts that the Veteran's hypertension was more likely a result of his diabetes. The nurse practitioner reasoned that diabetes does affect multiple people across the United States, and it is well-documented that exposure to Agent Orange does increase the chance of diabetes. She stated that nearly 65 percent of all diabetics will die from heart disease or a stroke, a rate that is four times higher than in the non-diabetic population. The nurse practitioner continued by reporting that it is a well-known fact that diabetes should be treated as a progressive disease, in which the complications arising from the damaging effects on the cardiovascular system and the microvascular effects are treated in order to slow or prevent death. The nurse practitioner concluded by stating that the Veteran's current diagnosis of hypertension could be directly related to the effects of his diabetes. In December 2010, the Veteran was provided a VA examination to determine the etiology of his hypertension. Following a physical examination of the Veteran and a review of the claims file, the VA examiner diagnosed the Veteran with hypertension. The examiner then determined that it is at least as likely as not (50/50 probability) that the Veteran's current hypertension was caused by or a result of his service-connected Type II diabetes mellitus. The examiner reasoned that the Veteran's hypertension appeared some years after his initial diagnosis of Type II diabetes mellitus, which supports the appropriate temporal relationship. The examiner pointed out that there was no evidence of clinically significant hypertension during the Veteran's active military service. The examiner also relied on his current medical knowledge and experience in forming his medical opinion. In February 2012, the Veteran's private treating physician, J.D., D.O., submitted a medical opinion. The physician found that the Veteran's hypertension is most likely a result of his diabetes. The physician reasoned that he is unable to prove otherwise. The aforementioned medical opinions support the Veteran's claim for service connection for hypertension on a secondary basis, that is, that the Veteran's currently diagnosed hypertension is caused by his service-connected Type II diabetes mellitus. The Veteran was afforded VA examinations in August 2007 and January 2010, but medical opinions regarding the etiology of the hypertension were not provided. Thus, there is no contrary medical opinion contained in the claims file. The Veteran's lay statements, and the Internet articles submitted by him, support these medical opinions. Based on the foregoing, the Board finds that the evidence supports the Veteran's claim for service connection for hypertension, as secondary to his service-connected Type II diabetes mellitus. As the competent medical evidence of record etiologically links the Veteran's hypertension to his service-connected Type II diabetes mellitus, service connection for hypertension is warranted. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER Service connection for hypertension, as secondary to the service-connected Type II diabetes mellitus, is granted. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs