Citation Nr: 1307481 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-38 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a heart disorder, claimed as autonomic neuropathy heart with high blood pressure, to include as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for hypertension, claimed as secondary to heart disorder, to include as secondary to service-connected diabetes mellitus, type II. ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from June 1961 to April 1982. This matter came before the Board of Veterans' Appeals (BVA) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded the Veteran's claims in April 2011. As the Board has remanded the Veteran's claims, the Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). Since the April 2011 Board remand, the RO granted the Veteran's claims for service connection for diabetic retinopathy, erectile dysfunction, and peripheral neuropathy of the right and left upper and lower extremities in a December 2011 rating decision. The Veteran has not disagreed with the assigned disability ratings or the effective dates. Therefore, the matters of service connection for diabetic retinopathy, erectile dysfunction, and peripheral neuropathy of the right and left upper and lower extremities have been resolved and are not in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection]. In October 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in November 2012 and in December 2012, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. Accordingly, the Board will proceed with the consideration of his case. FINDINGS OF FACT 1. The Veteran does not have a heart disorder. 2. The Veteran's current hypertension began many years after service, was not caused by any incident of service, and was not caused by or permanently worsened by his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. A heart condition was not incurred in or aggravated during military service, and is not proximately due to or the result of service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. Hypertension was not incurred in or aggravated by service, and is not proximately due to or the result of service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). 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 of the VCAA 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. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations of certain diseases during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the types of evidence that "indicate" that a current disability "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant evidence. VA has also obtained medical examinations with regard to the heard and hypertension claims, as well as an opinion from a VA physician and a VHA opinion in relation to the hypertension claim. As noted above, this case was previously before the Board in April 2011. In the April 2011 remand, the Board instructed that the Veteran undergo VA examinations. The Veteran underwent such examinations in June 2011. The directive of the April 2011 remand has thus been accomplished. Again, the Board has a duty to ensure substantial compliance with its remand directives. See D'Aries, 22 Vet. App. at 97. As the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall, 11 Vet. App. at 271. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal decided herein is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Legal Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted on a presumptive basis for certain chronic disabilities when they are manifested to a compensable degree within the initial post-service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. Notably, in this case, as discussed in the analysis below, the preponderance of the evidence is against a finding that heart disorder or hypertension are proximately due to or the result of the service-connected diabetes mellitus, type II. Therefore, further discussion in the analysis below as to the amended provisions of 38 C.F.R. § 3.310, as to establishing a pre-aggravation baseline level of disability, is not necessary. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Heart Disability Factual Background & Analysis The Veteran asserts that he has a heart disability related to his active duty service, to include as secondary to his service-connected diabetes mellitus, type II. Service treatment records show no evidence of a heart condition. The Veteran's April 1981 physical examination for purposes of discharge from service shows that his blood pressure reading was 126/84. Examination revealed no relevant abnormalities. There are no other service treatment records related to a heart disability. The Veteran underwent a VA examination in June 2011. He denied having a heart condition and stated that he was never diagnosed with one. Following physical examination, the examiner noted that there was no evidence of a heart condition. There is no post-service diagnosis of a heart disability. The Veteran has not identified or submitted any medical evidence which shows any current heart disability. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no evidence of a current disability, it is unnecessary for the Board to reach the question of etiology of the claimed heart disability. Simply put, service connection is not warranted in the absence of proof of current disability. As for the Veteran's statements attributing a heart disability to his period of service, or to a service-connected disability, he is competent to describe symptoms of a heart disability. However, he is not competent to render a diagnosis, given the medical complexity involved with respect to the claimed disability. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In summation, the Board finds the evidence that weighs against the claim has higher probative value and therefore outweighs the evidence in support of the claim. As such, the Board finds that entitlement to service connection for a heart disability is not warranted. The evidence is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert, 1 Vet. App. 49; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 . Hypertension Factual Background & Analysis The Veteran contends that he has hypertension that is related to service, or, more specifically, that is related to his service-connected diabetes mellitus, type II. His service treatment records do not show complaints, findings, or diagnoses of hypertension, or any elevated blood pressure readings. The Veteran's April 1981 physical examination for purposes of discharge from service shows that his blood pressure reading was 126/84. There is no diagnosis of hypertension in the year after the Veteran's period of service, or for many years thereafter. The first post-service evidence of any possible hypertension, or elevated blood pressure readings, is in a March 2004 private treatment record from Dr. L. which shows that blood pressure reading was 142/90. Private treatment records dated in October 2008 reflect that the Veteran was diagnosed with hypertension. The Veteran underwent a VA examination in June 2011. He reported that hypertension was diagnosed in 2000. Following physical examination, the examiner diagnosed hypertension. The examiner noted that the Veteran had no evidence of diabetic nephropathy on this examination, and hypertension due to diabetes mellitus is unlikely in the absence of diabetic nephropathy. A November 2012 opinion was provided by a VHA specialist. The physician noted that the Veteran's claims file had been reviewed. The physician opined that it is not at least as likely as not that diabetes mellitus type II aggravated (permanently worsened) the Veteran's hypertension. The physician reasoned that the long term consequences of diabetes mellitus type II can include microvascular damage, which can be manifest by renal glomerular disease. Glomerular disease is evidenced by elevations of urine protein. The physician stated that the literature reflects that in setting of elevated urine protein, and when found in combination with diabetic retinopathy, aggravation of hypertension could be argued. However, the evidence provided, with normal urine protein does not support the diagnosis of diabetic nephropathy, and thus no aggravation of hypertension can be supported. The Veteran asserts service connection for hypertension secondary to his service-connected diabetes mellitus, type II. On review, the Board finds that the preponderance of the evidence is against a finding that hypertension is related to service. The medical evidence during service shows no indication of any condition referable to this diagnosis during service. The Veteran has not alleged that hypertension began during service or within one year of his discharge. Indeed, at the June 2011 VA examination, the Veteran reported that hypertension was diagnosed in 2000. The June 2011 VA examiner diagnosed hypertension, noted that the Veteran had no evidence of diabetic nephropathy on examination, and stated that hypertension due to diabetes mellitus is unlikely in the absence of diabetic nephropathy. The November 2012 VHA physician opined that it is not at least as likely as not that diabetes mellitus type II aggravated (permanently worsened) the Veteran's hypertension. There are no opinions to the contrary. While the Veteran is competent to report that he had symptoms he felt were related to hypertension during his periods of service, or since service, he is not competent to diagnose his claimed hypertension as related to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). Similarly, the Veteran is not competent to provide either a diagnosis or the medical nexus, and medical opinions from medical professionals have not related his hypertension to his period of service, or to his service-connected diabetes mellitus, type II. Thus, the Veteran's lay assertions are not competent or sufficient. See Jandreau. The weight of the competent medical evidence demonstrates that the Veteran's hypertension began many years after his period of service, was not caused by any incident of service, and is not proximately due to or the result of his service-connected diabetes mellitus, type II. The Board concludes that neither direct nor secondary service connection for hypertension is warranted. As the preponderance of the evidence is against the claim for service connection, 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 a heart disorder is denied. Service connection for hypertension is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs