Citation Nr: 1307306 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 06-19 235 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to November 1970. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision that, in pertinent part, denied service connection for hypertension. The Veteran timely appealed. In February 2010, the Veteran testified during a video conference hearing before the undersigned. In September 2010 and in March 2012, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDING OF FACT Hypertension was not present during active service or within the first post-service year, and is not otherwise related to service or to a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, is not proximately due to or the result of a service-connected disability, and may not be presumed to be related to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3). Through May 2005 and March 2012 letters, the RO or VA's Appeals Management Center (AMC) notified the Veteran of elements of service connection and the evidence needed to establish each element. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. In the March 2012 letter, the AMC specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO or AMC has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record and appear adequate. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders, including hypertension, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2012). There is no competent evidence of hypertension in service or within the first post-service year. A blood pressure reading at the time of the Veteran's separation from active service in November 1970 was 104/70 (sitting). The Veteran also reported in August 2005 that he never had been diagnosed with hypertension. The term "hypertension" means that the diastolic blood pressure is predominantly 90 millimeters or greater. "Isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran contends that service connection is warranted on the basis that his current hypertension is the result of exposure to herbicides in service. The Veteran's active duty included a two-week period of service in Da Nang, Vietnam, from late December 1969 to early January 1970; hence, he is presumed to have been exposed to herbicides in service. See 38 U.S.C.A. § 1116(f) (West 2002). VA regulations provide that, if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain disorders: Hypertension is not listed among the diseases presumed to be associated with Agent Orange exposure. 38 C.F.R. § 3.309(e). In this case, the record reflects that the Veteran was first diagnosed with hypertension many years after his military discharge from service. While the disability has persisted and is chronic in nature, the Veteran is not entitled to presumptive service connection for hypertension. Specifically, the Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for hypertension. It was indicated that the National Academy of Sciences, after reviewing pertinent studies, found evidence suggesting an association "limited because chance, bias, and confounding could not be ruled out with confidence." See Notice, 77 Fed. Reg. 47924-47928 (2012). Thus, notwithstanding the fact that the Veteran served in Vietnam during the Vietnam era and is presumed to have had Agent Orange exposure, service connection on a presumptive basis as due to Agent Orange exposure is not warranted for hypertension. The Board notes, however, that even when the Secretary determines that a disability should not be added to the list of presumptive conditions, a claimant may still establish that service connection is warranted by showing that the claimed disability is at least as likely as not causally linked to herbicide exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Significantly, in this case, the Veteran has not reported any incidents of actual exposure to herbicides during his brief stay in Da Nang, Vietnam. Specifically, the Veteran had flown to Da Nang around Christmas in 1969, and had remained there until the week after New Year's Day in 1970 when he flew by helicopter from Da Nang to his new assignment on the U.S.S. Thomaston. A VA examiner in August 2005 concluded that the Veteran had no diagnosis of heart disease, and that he basically had no symptoms of heart disease. As noted above, the Veteran reported in August 2005 that he never had a diagnosis of hypertension; and also reported that his use of "Lisinopril" was mainly for his renal nephropathy. Blood pressure readings in August 2005 were 110/70, 120/80, and 120/80. Following examination and laboratory testing, diagnoses included diabetes mellitus and hypertension. The August 2005 examiner opined that the Veteran's hypertension was well controlled on medication and not causally related to his diabetes mellitus, and indicated that there was no evidence of nephropathy. In September 2009, the RO reported that it could not confirm the Veteran's exposure to Agent Orange, following a review of his records and lay statements. Here, the evidence of record weighs against a finding that hypertension was present during active service or within the first post-service year, or is otherwise related to disease or injury in active service-including exposure to herbicides. The Board is within its province to weigh the Veteran's statements and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As indicated above, the first credible showing of pertinent disability is many years after service with no competent evidence that it is in any way related to active service. The Veteran also contends that his hypertension is secondary to his service-connected diabetes mellitus. Any disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2012). 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, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA treatment records show blood pressure readings of 172/94 in April 2004 and of 169/90 in December 2004. The Veteran's hypertension was noted as uncontrolled in January 2005, and that "Lisinopril" medication was increased. As noted above, an August 2005 VA examiner opined that the Veteran's hypertension was not causally related to his diabetes mellitus. In February 2010, the Veteran testified that he was diagnosed with hypertension about the same time that he was diagnosed with diabetes mellitus. In November 2010, a VA staff physician indicated that the Veteran had been treated on a regular basis for both hypertension and diabetes mellitus for the past five years. Following the Board's March 2012 remand, the Veteran underwent a VA examination in May 2012 for purposes of determining whether the Veteran's hypertension was promixately due to or the result of, or aggravated by his service-connected diabetes mellitus. The examiner reviewed the claims file and noted the Veteran's medical history. The examiner opined that it was less likely than not that the Veteran's hypertension was proximately due to or the result of his service-connected diabetes mellitus. In support of the opinion, the examiner reasoned that the Veteran's hypertension was diagnosed concurrently with diabetes mellitus, which made it less likely than not that diabetes mellitus caused the Veteran's hypertension. In terms of aggravation, the May 2012 examiner explained that the presence of microvascular complications with diabetes mellitus at the level of the kidney would cause aggravation of hypertension; and that this is because the kidney has a regulatory role in controlling volume status and vascular resistance, which affect systemic pressures such as hypertension. The examiner indicated that diabetic injury to the kidney, if present, based on a positive microalbuminuria test, would cause aggravation of existing hypertension. In other words, if there is kidney disease, then balance and regulation are affected; and the earliest sign of chronic kidney damage or disease from diabetes mellitus is found with leaking protein in the urine, and screened by the urine microalbumin test. The May 2012 examiner indicated that the Veteran's tests have been negative for evidence of kidney disease; his current microalbuminuria was negative, and the Veteran did not show any other signs or symptoms of microvascular complications from diabetes mellitus. Based on the absence of kidney disease and negative test results, the May 2012 examiner opined that it was less likely than not that the Veteran's diabetes mellitus aggravates the Veteran's hypertension. The examiner also noted that the Veteran's hypertension was well controlled on a single medication, which was also evidence of a lack of aggravation. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the opinions by the August 2005 and May 2012 examiners to be persuasive in finding that the current hypertension was less than likely due to or in any way aggravated by active service or by a service-connected disability, including diabetes mellitus. Hence, the Board finds the opinions are factually accurate, fully articulated, and contain sound reasoning. Therefore, the opinions are afforded significant probative value. Nieves-Rodriguez, 22 Vet. App. at 304. While the Veteran contends that his hypertension was caused by or had worsened due to his diabetes mellitus, he is not shown to have the medical expertise to offer an opinion on such a complex medical question. He is not shown to be competent to render an opinion as to the nature of his underlying hypertension, or to identify that a disability such as hypertension is related to his service-connected diabetes mellitus. In essence, the Board finds that the issue presented in the case is not one in which the Veteran's lay contentions can serve to support an award of service connection. In short, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against granting service connection for hypertension, to include as secondary to diabetes mellitus. On this matter, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension, to include as secondary to diabetes mellitus, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs