Citation Nr: 1309362 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 04-25 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus. 2. Entitlement to total disability based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from January 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2004 and April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a videoconference hearing in April 2011 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The case was originally remanded by the Board in August 2010 to afford the Veteran a videoconference hearing. The Veteran was afforded a hearing in April 2011. The issue of service connection for hypertension was denied in September 2011,while the issue of entitlement to TDIU was remanded at the same time. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an April 2012 joint motion for remand (JMR), the Court vacated the September 2011 Board decision with respect to the claim for hypertension and remanded the matter for compliance with the terms of the JMR. Subsequently, in August 2012, the Board again remanded the issues of service connection for hypertension and entitlement to TDIU to afford the Veteran a VA examination and nexus opinion regarding the effect of his diabetes on his hypertension. The examiner provided a nexus opinion with a sufficient rationale for that opinion. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's hypertension did not manifest during service. 2. The Veteran's hypertension is not causally or etiologically related to service. 3. The Veteran's hypertension is not causally or etiologically related to his service-connected diabetes mellitus, type II, nor was his hypertension permanently worsened by his diabetes. 4. The Veteran's service-connected disabilities, without consideration of his age or non-service connected disabilities, do not prevent the Veteran from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The criteria for TDIU have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.16(a),(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under 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) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through VCAA letters dated February 2003, April 2003, September 2004, February 2005, and March 2006, the Veteran was informed of the information and evidence necessary to substantiate the claims. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA letter to the Veteran was provided in February 2003 prior to the initial unfavorable decision in January 2004. In this case, the Veteran was also advised of the criteria for rating a disability and those governing effective dates of awards in the March 2006 letter, prior to the most recent adjudication by the RO. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, VA treatment records, a Social Security Administration decision, private treatment letters, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded a VA examination in October 2011 to address his TDIU claim and in October 2012 to address his hypertension claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, and the examination reports set forth detailed examination findings. Therefore, the examination reports are adequate to decide the claims of service connection and TDIU. Thus, further examination is not necessary regarding the issue on appeal. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his service connection claim and his TDIU claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had a history and current symptoms meeting the criteria for service connection as well as the current state of his overall service-connected disabilities and their effect on his employment. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims file. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Service Connection - Hypertension 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). 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 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 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). 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). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). 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."). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has a current diagnosis of hypertension that is causally or etiologically related to his service-connected diabetes mellitus. The Veteran's service treatment records show no treatment or diagnosis of hypertension. The Veteran's November 1967 separation examination showed a blood pressure reading of 120/80 and the Veteran reported no history of or current high blood pressure. Post-service, the earliest onset of hypertension is noted as 1997. Additionally, in his lay statements and in his testimony during the Board hearing, the Veteran has clearly stated that he did not have hypertension during service. Rather, the Veteran asserts that his diagnosis of hypertension occurred decades after separation from service. The record is silent regarding any indication that the Veteran's hypertension is directly related to service. The Veteran's lay statements assert that his hypertension is related to his diabetes. Further, the medical evidence shows that a diagnosis of hypertension was provided in 1997 at the earliest. Based on the medical and lay evidence, the Board finds that the Veteran did not experience chronic symptoms of hypertension during active service or continuous symptoms of hypertension after separation from service. Additionally, the Veteran's hypertension manifested more than one year after separation from service. Finally, competent evidence does not indicate that the Veteran's hypertension is directly related to service. The Board must then address entitlement to service connection on a secondary basis. The only evidence of record relating the Veteran's current hypertension to his diabetes mellitus are the Veteran's lay assertions that the disability is caused or aggravated by his diabetes. The Veteran has not demonstrated that he has expertise in medical matters. While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, although the Veteran is certainly competent to testify as to symptoms, the question as to the etiology of his hypertension is a matter requiring medical expertise to determine. Indeed, hypertension can have multiple causes, and such question is one typically determined by persons with medical training. Thus, on this point, the Board finds the medical evidence of record to be more probative than the Veteran's lay assertion as to the cause of his hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, there is no medical evidence of record that finds a relation between the Veteran's hypertension and his diabetes mellitus. The only medical opinions in the file were provided by the VA examiners in September 2003 and October 2012. In September 2003 the Veteran was examined. Following this, the examiner determined that the Veteran's hypertension antedated the diagnosis of diabetes mellitus and that hypertension is therefore not due to diabetes mellitus. The October 2012 examiner addressed whether the Veteran's diabetes permanently aggravated his hypertension. The examiner noted that the manner in which hypertension can be construed as due to or aggravated by diabetes mellitus type II is if there is a kidney complication, as manifested by persistent microalbuminuria. The examiner reviewed the Veteran's records and found two elevated microalbuminuria, that is, in November 2001 his microalbuminuria was 30 and two years later it was 28. The examiner noted that although both of these findings were elevated, the two abnormal results, which were two years apart, do not constitute persistent microalbuminuria. Between August 2004 and September 2011, the Veteran's microalbuminuria was measured to be between 0.2 and 0.9, which were all within normal limits. As cited in literature, the examiner noted that the persistent presence of microalbuminuria is associated with early-stage kidney disease. Therefore, because the Veteran has no evidence of diabetic nephropathy, the Veteran's diabetes has not aggravated his hypertension. The examiner specifically stated that diabetes aggravates hypertension only in the presence of kidney involvement, as detected by the presence of persistent microalbuminuria, which, for this Veteran, are absent. Thus, by all evidence reviewed, the Veteran's hypertension is less likely as not proximately due to, the result of, or permanently aggravated by his service-connected diabetes mellitus. The October 2012 examiner was fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions. Additionally, he provided a fully articulated opinion that included a reasoned analysis. Therefore, the Board finds that the examiner's opinion is of significantly more probative value than the Veteran's lay assertions. In sum, the evidence does not show and the Veteran does not contend that his hypertension is related to service or manifested within a year of discharge from service. Moreover, the most probative evidence indicates that the Veteran's hypertension is not related to or permanently worsened by his diabetes mellitus. Accordingly, the preponderance of the evidence is against the claim, and service connection for hypertension is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). TDIU Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran contends that he is unable to secure substantially gainful employment due to his service-connected disabilities, to include: posttraumatic stress disorder (PTSD), which is rated as 50 percent disabling, peripheral neuropathy of the right upper extremity, which is rated as 30 percent disabling, diabetes mellitus, type II, which is rated as 20 percent disabling, peripheral neuropathy of the right lower extremity, which is rated as 20 percent disabling, peripheral neuropathy of the left upper extremity, which is rated as 20 percent disabling, peripheral neuropathy of the left lower extremity, which is rated as 20 percent disabling, and erectile dysfunction, which is noncompensable. The Veteran's total combined evaluation for compensation is 90 percent. Therefore, he meets the schedular rating criteria for TDIU; and the issue becomes whether the Veteran's service-connected disabilities render him unemployable. 38 C.F.R. § 4.16(a). However, for the reasons discussed below, the Board finds the weight of the evidence against the Veteran's assertion that his service-connected disabilities preclude him from either obtaining or sustaining substantially gainful employment. Following service, the Veteran worked for nearly three decades for a paper mill. He stopped working in 1997. A December 1997 private medical opinion shows that the Veteran could not work due to his orthopedic and arthritic problems. A July 1999 private record confirms these findings. Nevertheless, the Veteran maintains that even without these non-service connected disabilities, his service-connected disabilities would render him unable to work. It is undisputed that the Veteran has PTSD, as well as other disabilities related to his diabetes mellitus. The Board acknowledges that the Veteran's August 2007 VA examination noted that the Veteran can only do sedentary work. Additionally, the record shows that the Veteran's PTSD interferes with his efficiency and productivity. However, the VA examiner in October 2011 noted that it is less likely than not that the Veteran is unable to maintain substantially gainful employment as a result of psychiatric symptoms solely. The examiner noted that the Veteran had 30 years of gainful employment, which he left due to physical health problems, and while the Veteran's symptoms of PTSD are more likely than not to result in reduced reliability and productivity in the occupational domain, his physical problems are the reason for his unemployability. Therefore, the Board finds that the evidence of record has failed to show that the Veteran is in fact rendered unemployable by his PTSD. When considering the Veteran's other service-connected disabilities, the an October 2011 VA examiner noted that the Veteran's diabetes prevents him from driving a truck or operating any type of heavy equipment, but does not prevent him from doing any type of sedentary work or desk job. The Veteran's peripheral neuropathy is also less likely than not to prevent the Veteran from securing gainful employment. The examiner noted that it would prevent him from doing any type of job that requires prolonged standing or heavy lifting, but it would not prevent him from doing any type of sedentary or desk job. The Board acknowledges a May 2011 statement from the Veteran's social worker. The social worker noted that the PTSD is known to cause impairment of occupational and social skills, and that the Veteran has not worked since November 1997. She did not discuss, however, the evidence reflecting the Veteran's inability to work in 1997 as resulting from arthritis in his knees and other orthopedic problems. Therefore, the Board finds her statements to be less probative than the findings of the October 2011 VA examiner who provided a thorough examination, commented on the Veteran's history and records, and provided a rationale for the opinion consistent with other findings in the record. In sum, the Board finds that the Veteran's service-connected disabilities do not manifest to a level that precludes him from obtaining or sustaining substantially gainful employment. Therefore, the criteria for TDIU have not been met and the Veteran's claim is denied. ORDER Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus is denied. Entitlement to TDIU is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs