Citation Nr: 1310059 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 09-19 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, as secondary to the service-connected diabetes mellitus, type 2 (DM). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and D.W. ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Among other things, service connection for hypertension was denied therein. The Veteran appealed this determination. In May 2011, the Veteran and D.W., his wife, testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of this hearing is of record and has been reviewed. This matter was remanded for additional development in August 2011 and August 2012. Such development now has been at least substantially completed. Adjudication thus may proceed, if otherwise in order. Dyment v. West, 13 Vet. App. 141 (1999) [holding that another remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with)] aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on review of the Veteran's claims file in addition to his Virtual VA "eFolder," no reason is found to defer adjudication. The following determination thus is made. Of import, service connection for hypertension was denied under multiple theories of entitlement by the RO. Yet the Veteran unequivocally indicated at his hearing that the only theory he was appealing was as secondary to his service-connected DM. This matter accordingly has been characterized as above. FINDING OF FACT The Veteran's hypertension is not related in any manner to his service-connected DM. CONCLUSION OF LAW The criteria for establishing service connection for hypertension, as secondary to the service-connected DM, have not been met. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Proper notice from VA must inform the claimant and his representative, if any, prior to the decision by the agency of original jurisdiction (AOJ) of any information and any 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran was notified via letter dated in April 2007 of the criteria for establishing service connection generally, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability evaluations and effective dates if service connection is awarded. This predated the initial adjudication by the AOJ, which in this case is the RO, in the October 2007 rating decision. June 2008 and August 2011 letters exceeded what is required by readdressing the above. The latter letter, which was sent pursuant to the Board's August 2011 remand, also notified the Veteran of the criteria for establishing service connection on a secondary basis as well as the evidence required in this regard. This was after the initial adjudication by the AOJ/RO, but the timing error has been cured. Readjudication followed the letter in June 2012 and January 2013 supplemental statements of the case (SSOCs). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (a notice timing problem can be cured by issuance of notice followed by readjudication such as in a SSOC); see also Prickett v. Nicholson, 20 Vet. App. 370 (2006). Furthermore, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) [overturning the holding in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), that all VCAA errors are presumed prejudicial unless VA shows that the essential fairness of the adjudication was not affected]; see also Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); & Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been satisfied. Pursuant to the duty to assist, VA is required to aid the claimant in the procurement of pertinent records, whether or not they are in Federal custody. 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. §§ 3.159(c)(1-3). VA also is required to provide a medical examination and/or obtain a medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. §§ 3.159(c)(4). Service treatment records, VA treatment records, and private treatment records regarding the Veteran have been obtained. This was through VA's efforts, his submitting them on his own behalf, or both. Of note is that some of the private treatment records were obtained pursuant to the Board's August 2011 remand. Pursuant to the Board's August 2012 remand, attempts were to be made by VA to obtain treatment records from a private physician dated prior to February 2004 and an 1997 examination record from a private insurance company. No attempts were undertaken, however, as the records were formally found to be unavailable. The Veteran indeed indicated that the insurance company would not release the record since a physician did not conduct the examination and that the private physician's records were over 10 years old and thus had not been kept. The individual presiding over a hearing, such as the Veteran's May 2011 hearing, must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Service connection for hypertension was identified by the undersigned Veterans Law Judge as the sole issue at the outset of the hearing. The undersigned later confirmed that this issue was narrowed to as secondary to DM, as indicated above. It was explained in that information was elicited from the Veteran, through questioning by the undersigned and his representative, concerning his hypertension, his DM, and the relationship between the two. Regarding evidence that may have been overlooked, pertinent private records were identified via questions posed to the Veteran from the undersigned and his representative about his treatment history. A period of 30 days was provided for the submission of these treatment records. None were received. As noted above, however, the Board's remands directed development for private treatment records. This largely was based on the Veteran's testimony. A VA medical examination was conducted and a VA medical opinion rendered in September 2007. The Veteran was interviewed, and a pertinent physical assessment complete with diagnostic testing was performed, during the examination. His claims file was reviewed. The Board's August 2011 remand found a deficiency with the opinion. In compliance therewith, another VA medical opinion was rendered following review of the claims file in November 2011. The Board's August 2012 remand once again found a deficiency with the opinion. Pursuant thereto, a third VA medical opinion was rendered following review of the claims file in September 2012. No deficiency is detected. All questions necessary to render the determination made herein thus have been answered. As discussed below in greater detail, the VA medical examination and opinions accordingly collectively are adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as providing sufficient detail so that the Board can perform a fully informed evaluation). Significantly, neither the Veteran nor his representative has identified any further development necessary for a fair adjudication of the claim that has not been completed. The record also does not indicate any such development. The Board thus finds that VA's duty to assist has been satisfied. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. The duty to notify and the duty to assist both having been met, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection The Veteran and D.W. contend that his hypertension is related to his service-connected DM. Specifically, they assert that his blood pressure was not problematic until after he was diagnosed with DM. Secondary service connection means that a current non-service-connected disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). To establish service connection on a secondary basis, there must be a current disability proximately caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). With respect to aggravation, the baseline level of disability pre-aggravation must be compared to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran may be compensated only for the degree of disability over and above the baseline plus natural progression. Id.; Allen, 7 Vet. App. at 448. In other words, there must be a permanent worsening beyond natural progression rather than temporary or intermittent flare-ups. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Board must account for evidence that it finds to be persuasive or unpersuasive and provide reasons for rejecting any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, an assessment of the probative value of lay (non-medical) evidence in addition to medical evidence must be undertaken. Competency is "a legal concept determining whether testimony may be heard and considered" whereas credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Layno v. Brown, 6. Vet. App. 465 (1994). A lay person is competent to provide testimony or statements relating to facts of events that the lay person observed or that is within the realm of his/her personal knowledge. Id. In weighing credibility, discounting of competent lay testimony or statements may occur "in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Factors for consideration therefore include a showing of interest, self-interest, bias, inconsistent statements, inconsistency with other evidence of record, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor. See Pond v. West, 12 Vet. App. 341 (1999); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991). "[T]he Board cannot determine that lay testimony or a lay statement lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the lack of such evidence in combination with other factors may lead to the determination the lay testimony or statement is not credible. The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. Although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The evidence leads the Board to conclude that service connection for hypertension as secondary to service-connected DM is not warranted. All necessary requirements for establishing entitlement to this benefit under this theory of entitlement are not met. A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of such claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed his claim in February 2007. Private treatment records dated beginning in January 2007 contain a diagnosis of malignant hypertension. Further, a diagnosis of essential hypertension was made at the September 2007 VA medical examination. It therefore is undisputed that the current disability of hypertension exists. What remains, then, is a determination of whether or not the Veteran's service-connected DM either proximately caused or aggravated his current hypertension disability. He and D.W. clearly believe such a nexus exists. As there is no indication that either possesses medical knowledge, training, or expertise otherwise obtained, each is a lay person. Lay evidence sometimes is sufficient to prove nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), as follows: "explicitly rejected [is] the view ... that 'competent medical evidence is required ... [when] the determinative issue involves ... etiology'"). It indeed is error to suggest that lay evidence can never be sufficient to satisfy the nexus requirement. Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). However, the question of whether there exists a nexus in this particular case falls outside the province of a lay person. It instead is a medical question. Of note in this regard are the several potential causes of hypertension, the complexities of DM, and the complexities of the interplay between the cardiovascular system, the endocrine system, and the renal system (see below). Only those with specialized medical knowledge, training, and/or expertise are competent where the determinative issue is one of medical causation. See Jones v. West, 12 Vet. App. 460 (1999). The Veteran and D.W. thus are not competent to render an opinion that there exists a nexus between his hypertension and his service-connected DM. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1372. Their credibility in this regard accordingly need not be addressed. No medical opinion from a private physician concerning a nexus between the Veteran's service-connected DM and his hypertension is of record. Three VA medical opinions concerning this nexus are of record, as noted above. Each relies on at least some of the following information set forth in private treatment records, a December 2011 letter from private physician P.S., the September 2007 VA medical examination, and the May 2011 hearing testimony. D.W. testified that the Veteran's blood pressure was always good before 2004 and that blood pressure was not brought up as an issue in 2004. In early February 2004, the Veteran indicated having a previous private physician. His history was "basically unremarkable." His blood pressure was 160/100. He felt it was elevated because he was a new patient and requested to check it at home. Dr. P.S. indicated that he did not diagnose hypertension because he felt the Veteran had "white coat" syndrome. There was concern that the Veteran may have DM. Thus, repeat testing was completed later in February 2004. No vital signs, to include blood pressure, were taken. DM was diagnosed, and the Veteran was prescribed medication, an exercise regimen, as well as nutrition counseling. Dr. P.S. indicated that the Veteran was supposed to follow up after February 2004 but failed to do so. The Veteran admitted as much in his testimony. He testified that, prior to January 2007, he never has any health issues. In January 2007, he had a stroke. His blood pressure got as high as 237/117 and 238/115. He noted a history of diet-controlled DM but did not indicate a history of hypertension. However, a known history of hypertension was referenced. Malignant hypertension was diagnosed. The Veteran recounted in September 2007 having been diagnosed with DM about five years prior, with a diagnosis of hypertension being made at the same time. As noted above, essential hypertension was diagnosed. He began seeking regular treatment, which included regulation of his hypertension and DM, subsequent to his stroke. His blood pressures ranged from the 120's to the 140's over the 50's to the 80's. In August 2007, M.U. opined on the basis of the VA medical examination and private treatment records that the Veteran's hypertension is not a complication of his DM. In this regard, it was noted that the DM and the hypertension were diagnosed at the same time. M.U. also opined that the Veteran's hypertension was not worsened by his DM. The Board deemed this part of the opinion deficient because no rationale was provided in its August 2011 remand. C.W.-J. opined in November 2011, on the basis of all of the aforementioned with the exception of Dr. P.S.'s letter, that it is not at least as likely as not that the Veteran's hypertension was caused or aggravated by his DM. It was noted in this regard that the Veteran's elevated blood pressure appears to have been forgotten, given the lack of a blood pressure reading later in February 2004 and no indication that Veteran checked his blood pressure at home as he said he would, due to the concern with his DM. The discrepancy of the Veteran reporting diet-controlled diabetes in January 2007 when medication had been prescribed in 2004 was mentioned. So was the discrepancy of him testifying that he never had health issues prior to 2007 when DM was diagnosed and his blood pressure was elevated in 2004. It was concluded that the Veteran was in denial about these health issues in 2004, as he did not continue his DM medication and did not follow up with blood pressure monitoring after choosing to believe his elevated blood pressure was related to "white coat" syndrome. A medical article determining that malignant hypertension most often occurs in patients with long-standing uncontrolled hypertension was cited. That the Veteran had renal insufficiency in 2004 and 2007 also was noted, but his specific problems were identified as not usually associated with DM and usually associated with uncontrolled hypertension. The etiology of the Veteran's essential hypertension finally was deemed idiopathic. The Board deemed this rationale relevant only to proximate cause and not to proximate aggravation in its August 2012 remand. Thus, no rationale for the aggravation opinion was found. W.T. opined in September 2012, on the basis of all of the aforementioned, that it is less than likely that the Veteran's hypertension was caused or aggravated by his DM. Noted in this regard was his elevated blood pressure in February 2004, which was taken to indicate significant hypertension then. Dr. P.S.'s determination that the Veteran instead had "white coat" syndrome was countered by reference to the current medical theory that physician appointments are not the only stressful events in life, so elevated blood pressure there more than likely indicates elevated blood pressure in life at other stressful times. Also noted were various test results from January 2007 indicating long-standing uncontrolled hypertension. In sum, it was concluded that the Veteran had hypertension when DM was diagnosed. The most likely etiology of his renal insufficiency in 2004 and 2007 was deemed to be hypertension and not DM. Test results showing problems more indicative of a hypertension cause were noted and medical articles cited in this regard. As such, it was concluded that there is no DM related renovascular disease present to impact hypertension. In assessing the probative value of medical evidence, there are several factors for consideration. These factors include: a physician's access to the claims file or other pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The qualifications and expertise of M.U., C.W.-J., and W.T. are adequate. C.W.-J. and W.T. identified themselves as physicians. M.U. provided no identifying title, but is listed as a physician in VA's email database. As noted above, M.U., C.W.-J., and W.T. all reviewed the claims file. While only M.U. interviewed the Veteran, C.W.-J. and W.T. had the benefit of reviewing his testimony as well as that of D.W. M.U. performed the only pertinent physical assessment, which was of typical scope. Yet C.W.-J. and W.T. had the benefit of reviewing a summary of it. Review, interview, and examination helps ensure the accuracy of the factual premises underlying an opinion. Here, no inaccuracy is detected in any of the opinions. The Veteran and D.W., though competent to recount the Veteran's history since he experienced it and D.W. observed it, appropriately were found to lack credibility in a few regards but particularly in asserting the Veteran was healthy with respect to his blood pressure prior to January 2007. Such indeed is inconsistent with the Veteran's recount at the VA medical examination as well as with the other evidence. That the Veteran and thus D.W.'s have a self-interest in asserting the aforementioned because doing so might lead to monetary gain further cannot be ignored. With respect to hesitation or uncertainty, none was expressed in rendering any of the opinions. That leaves the rationale supporting the opinions and their thoroughness and detail. Little probative value is assigned to M.U.'s opinion. The aggravation portion of the opinion was unsupported by a rationale. Further, the causation portion of the opinion was supported by a one sentence rationale. The rationale was not thorough or detailed, in other words. Little probative value is assigned to a portion of C.W.-J.'s opinion while substantial probative value is given to the other portion. The aggravation portion, like above, was unsupported by a rationale. The causation portion was supported by a thorough and detailed rationale. The pertinent evidence was highlighted, and current medical knowledge was considered. Both portions of W.T.'s opinion are assigned substantial probative value. Each was supported by a thorough and detailed rationale. Once again, the pertinent evidence was highlighted, and current medical knowledge was considered. While the probative value of one VA medical opinion and a portion of another is little while the probative value of a portion of one opinion and another entire opinion is substantial, of import is that all the opinions are negative. There is agreement among physicians that the Veteran's hypertension was not proximately caused or aggravated by his service-connected DM, in other words. He indeed has been found to have had hypertension at least since DM was diagnosed, which rules out causation. The etiology rather is essential or idiopathic. See Dorland's Illustrated Medical Dictionary, 909 (31st ed. 2007) (noting that hypertension may have no known cause (essential or idiopathic hypertension) or be associated with other primary diseases to include renal disorders (secondary hypertension)). Aggravation of hypertension by DM via renal insufficiency also was ruled out. There is agreement among physicians that the Veteran's renal insufficiency, though service-connected as secondary to his DM, was improperly attributed to his DM when it should have been attributed to his hypertension. Aggravation also was ruled out in that the Veteran's blood pressure essentially was found to be as high as it was in January 2007 not because of any impact of DM but because it was uncontrolled for a long period. This was partially due to the Veteran's denial that it was a problem. His blood pressure indeed came down after January 2007 to a level lower than what it was in 2004 as a result of regulation. The preponderance of the evidence, in sum, is against service connection for hypertension as secondary to DM. As such, the benefit of the doubt rule is inapplicable. Service connection for hypertension on the basis of the aforementioned theory of entitlement is denied. ORDER Service connection for hypertension, as secondary to the service-connected DM, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs