Citation Nr: 1307594	
Decision Date: 03/07/13    Archive Date: 03/11/13

DOCKET NO.  10-08 500	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


ATTORNEY FOR THE BOARD

T. Adams, Counsel






INTRODUCTION

The Veteran had active service from July 1967 to July 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, inter alia, denied service connection for hypertension, tinnitus, and peripheral neuropathy of the left leg.

The Board notes that January 2010 and July 2012 Decision Review Officer Decisions granted the Veteran's claims for service connection for tinnitus and peripheral neuropathy, respectively.  The Veteran has not submitted a notice of disagreement with either decision.  Accordingly, these issues are not currently before the Board, and the Board's review here is limited to the hypertension claim.

In September 2011, the Veteran withdrew a request for a hearing before the Board which he had made in his March 2010 substantive appeal.

The Board has reviewed the Veteran's physical claims file, as well as his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case.


FINDING OF FACT

The evidence of record does not indicate that hypertension had its onset during service or within a year thereafter, or that hypertension is due to or aggravated by the Veteran's service-connected diabetes mellitus.

CONCLUSION OF LAW

Hypertension was not shown to have been incurred in or aggravated by active military service and may not be presumed to have been incurred or aggravated therein; hypertension has not been caused by or aggravated beyond its normal progression by the Veteran's service-connected diabetes mellitus.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 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.  Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Proper notice from VA must inform the claimant of any information and 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.  38 C.F.R. § 3.159(b)(1).  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 holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date.

If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC).  Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial.  Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  In this case, the Veteran has not alleged any prejudicial or harmful error in VCAA notice.

In this case, prior to the initial denial of the present claim, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits on a direct basis in a notice letter sent in March 2008.  The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of his claim.  The RO further described what evidence that the Veteran should provide in support of his claim.  Moreover, the RO explained how VA determines the disability rating and effective date of a disability once service connection has been established, which satisfied Dingess notice requirements. 

Although the Veteran was not provided with notice of the evidence needed to establish entitlement to service-connected compensation benefits on a secondary basis in the March 2008 notice letter or, in any notice letter provided during the course of this appeal, such notice defect is harmless error.  The Veteran through his representative demonstrated an understanding of the evidence needed to establish entitlement to service connection for his hypertension on a secondary basis in raising the theory for entitlement during an informal conference with a Decision Review Officer in November 2009.  See Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that the appellant and representative had demonstrated actual knowledge of the information and evidence necessary to establish the claim).

Moreover, the record reflects that the Veteran has been provided with a copy of the above rating decision, the January 2010 SOC, and the July 2012 SSOC, which include discussion of the facts of the claim, pertinent laws and regulations, notification of the bases for the decision, and a summary of the evidence considered to reach the decision.

Regarding VA's statutory duty to assist in claims development, the Board notes that the Veteran's service treatment records (STRs) are included in the record.  In addition, post-service treatment records adequately identified as relevant to the claim have been submitted or otherwise obtained, to the extent possible, and are associated with the record.

Furthermore, the Veteran was afforded with a VA examination in July 2008 and a VA DBQ (Disability Benefits Questionnaire) examination in December 2011 and a DBQ opinion was obtained in January 2013.  Based on review of the claims folder and interview and evaluation of the Veteran, the examiners concluded that it is less likely as not that the Veteran's currently diagnosed hypertension is proximately due to or aggravated by his service-connected diabetes mellitus, as will be explained below.  The opinions were supported by an adequate rationale and are deemed sufficient for the purpose of this adjudication.

Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained.  Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim adjudicated herein.  Therefore, in view of the foregoing, the Board will proceed with appellate review.



II.  Service Connection

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  The Board has thoroughly reviewed all the evidence in the record.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence).

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.

The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Service connection may be granted for disability or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).

Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012).  The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from 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.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

Service connection may be granted for disability which is proximately due to, or aggravated by service-connected disability.  38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected.  Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310(b).

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 nonservice-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.

However, VA will not concede that a non-service-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).

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006).  Factors for consideration in assessing credibility include a showing of interest, bias, inconsistent statements, consistency with other evidence, and a lack of contemporaneous medical evidence, although that alone may not bar a claim for service connection.  Buchanan, 451 F.3d at 1336-37; Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096  (Nov. 9, 2000).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994).

In this case, the Veteran seeks entitlement to service connection for hypertension, also claimed as secondary to service-connected diabetes mellitus.

As an initial matter, the Board must consider the possibility of direct service connection, whether or not this theory is raised by the Veteran.  See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement).  As the July 2008 rating decision explicitly considered entitlement to service connection on a direct basis, no prejudice to the Veteran results from the Board's consideration of this issue at this time.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

The Board initially notes that there is evidence of a current diagnosis of hypertension.  The medical evidence of record, including a July 2008 VA examination, reflects a diagnosis of hypertension.  Thus, as the evidentiary record clearly shows a current diagnosis of hypertension, the Board will now consider in-service incurrence, to include the Veteran's primary contention that he has hypertension secondary to his service-connected diabetes mellitus.
Regarding an in-service diagnosis, the Veteran's STRs are silent as to any complaints, diagnosis, or treatment for high blood pressure or hypertension.  On separation in July 1970, his examination was negative for hypertension.  His blood pressure was reported to be 134/86 at the time.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2012) [For VA rating purposes, "hypertension" means that diastolic blood pressure is predominately 90 millimeter (mm.) or greater; "isolated systolic hypertension" means that the systolic blood pressure is predominately 160 mm. or greater with a diastolic blood pressure of less than 90 mm].

Post-service treatment records include a November 1993 private treatment report which reflects the earliest diagnosis of hypertension, more than 23 years after service separation. In summation, the competent evidence of record does not indicate and the Veteran does not claim onset of hypertension during active service, or to a compensable degree within a year thereafter.  Thus, service connection for hypertension as having been incurred during active military service, or within a year thereafter, is not warranted on a direct or presumptive basis.  Rather, the Veteran's primary contention is that his current diagnosis of hypertension is the result of or aggravated by his service-connected diabetes mellitus.

In this regard, the Veteran underwent a VA diabetes mellitus examination in July 2008 at which time the examiner noted that the Veteran was diagnosed with hypertension and diabetes in the mid-1990s.  His hypertension had been treated with medication since that time and was well-controlled.  The examiner opined that his hypertension was at least as likely as not essential hypertension and separate from his diabetes which were diagnosed about the same time.  The examiner stated that his renal function would be checked and that if it was normal, the likely diagnosis was essential hypertension that was unrelated to or caused by diabetes.  Lab results revealed normal renal function.

On VA DBQ hypertension examination in December 2011 the examiner noted the Veteran's history of hypertension since 1993 and stated that he had no other pertinent physical findings, complications, conditions, signs, or symptoms related to hypertension.  The examiner noted that the Veteran was examined for diabetes in July 2008 during which the examiner diagnosed hypertension and opined that it is at least as likely as not essential hypertension and separate from his diabetes.  They were diagnosed about the same time when he actively sought medical care.

The examiner opined that the Veteran's hypertension is less likely than not proximately due to or the result of his diabetes mellitus.  The rationale provided was that he had hypertension many years before diabetes mellitus and that the blood pressure readings on examination did not appear to be aggravated compared to those previously reported.  Also, the degree of microalbumuria shown in his lab work did not rise to the level of a "significant renal disease" that would be expected to aggravate hypertension.  The examiner explained that small degrees of microalbumin indicated an early stage of renal disease which would not be expected to raise blood pressure.

Parenthetically, the Board notes that within the examination report there is a box that was checked by the examiner which states that "The claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness."  However, the Veteran does not contend, and the evidence of record does not reflect that the Veteran's hypertension existed prior to service.  Rather, the record reflects that the Veteran was not diagnosed with hypertension until 1993 and the STRs are silent for any treatment or a diagnosis of hypertension.  Therefore, it appears that the examiner inadvertently checked the wrong box in the questionnaire and that this is no more than a typographical error rather than an opinion that the Veteran's hypertension existed prior to and was not aggravated by his active service.

In January 2013, a third VA examiner reviewed the clinical evidence in the claims file and opined that given that the Veteran's hypertension was diagnosed many years prior to his diabetes mellitus, the examiner agreed with the July 2008 opinion that it is less likely as not that the Veteran's hypertension is due to his diabetes mellitus.  Furthermore, diabetes mellitus is thought to aggravate hypertension when diabetes itself causes clinically significant proteinuria with renal dysfunction.  The examiner further opined that the Veteran's proteinuria is most likely due to his hypertension and not his diabetes mellitus.  Therefore, his hypertension is also less likely as not to have been aggravated by his diabetes.
On review of the evidence above, the Board finds preponderance of the evidence to be against the award of service connection for hypertension on a secondary basis, as due to or aggravated by diabetes mellitus.  The Veteran has been afforded VA and DBQ examinations in which the examiners, based on review of the evidence, stated a medical opinion against such an etiological relationship, and there is no contrary medical opinion of record.

VA must consider all favorable lay evidence of record.  38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA.

A layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  Lay evidence can, in some circumstances, also be competent to establish a medical diagnosis.  See Davidson, supra.

In this regard, the Board recognizes that there is no bright line rule that laypersons are not competent to offer diagnoses or etiology opinions.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology).  Evidence, however, must be competent evidence in order to be weighed by the Board.  Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case.

In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding.  Id.  In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable.  The Board finds that the question of whether the Veteran currently has hypertension that is due to or aggravated by his service-connected diabetes mellitus is too complex to be addressed by a layperson.  While the Veteran is certainly competent to testify to symptoms he observed during and since his service, he is not competent to offer an opinion as to the cause of this disability.  This connection or etiology is not amenable to observation alone.  Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals.  Hence, the Veteran's opinion of the etiology of his current hypertension is not competent evidence and is entitled to low probative weight.

For the foregoing reasons, the claim for service connection for hypertension, to include as secondary to diabetes mellitus, must be denied.  Hypertension has not been shown to have had its onset during active military service or within a year thereafter, or as due to or aggravated by the Veteran's service-connected diabetes mellitus.  The Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is denied.


____________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs