Citation Nr: 1310081 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 06-32 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2005 and November 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. A video conference hearing was held before the undersigned Veterans Law Judge in April 2010, and a transcript of this hearing is of record. When this case was most recently before the Board in September 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA examination. The RO scheduled an examination for October 2012, notified the Veteran, but he failed to appear for the examination. Thus, the Board finds that the action specified in the September 2012 Remand was completed; the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims files but also the Veteran's file on the "Virtual VA " system to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's hypertension was not present during service or continuously since service and was not present within one year after separation from service. 2. The Veteran's hypertension was not caused or aggravated by his service-connected diabetes mellitus or PTSD. CONCLUSION OF LAW The Veteran's hypertension was not incurred in or aggravated by active service, may not be presumed to have been caused during active service, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his diabetes mellitus and/or PTSD are responsible for his hypertension. His claim will be considered on direct and presumptive bases to accord him every possible consideration. For the reasons that follow, the Board finds that his hypertension was not present during service or continuously since service, was not present within one year after separation from service, and was not caused or aggravated by his service-connected diabetes mellitus and/or PTSD. The Board concludes that service connection is not warranted. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may 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 C.F.R. § 3.303(d) (2012). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2009); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(c). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Id. The Veteran filed the instant claim for service connection in September 2004. There are no complaints, findings, or treatment for hypertension in the Veteran's service treatment records and no evidence that the Veteran was diagnosed with hypertension within one year of separation from service. However, the Veteran has argued, and presented testimony to the undersigned, that his hypertension developed secondary to his service connected diabetes mellitus and/or PTSD. The record is replete with VA and private treatment records confirming that the Veteran has a current diagnosis of hypertension. Specifically, a January 2005 VA treatment record notes onset of hypertension in 2004. The medical evidence of record clearly establishes a current diagnosis of hypertension. The first element of service connection is satisfied. The Veteran is also currently service-connected for diabetes mellitus and PTSD. The only questions remaining for service connection and for secondary service connection is whether hypertension is related to active service or whether the diabetes mellitus and/or PTSD either caused or aggravated his hypertension. With respect to the Veteran's contentions that he has hypertension either caused or aggravated by his service-connected diabetes mellitus or PTSD, the Board observes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson reports lay observable symptoms which are amenable to lay diagnosis, (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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Although the Veteran is competent to give evidence about what he experiences, he is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training (for example: diagnosis himself with a problem and then associate that problem with a service connected problem, as in this case). See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The Board finds that although the Veteran is also deemed credible, hypertension is not observable through the five senses as it involves a disease process internal to the body with no symptoms that are uniquely identifiable as hypertension by a lay observer. In April 2005, the Veteran was afforded a VA examination of a number of disabilities, including hypertension. The VA examiner confirmed that the Veteran suffered from hypertension, but concluded, based on the physical examination and the Veteran's medical history, that the cause of the Veteran's hypertension was ideopathic and not the result of his diabetes mellitus. However, in October 2006, the Veteran submitted a letter from Dr. K.V. who stated: There is increasing evidence to support a strong link between PTSD and hypertension. PTSD is clearly associated with elevated levels of stress hormones, particularly epinephrine and norepinephrine. One of the important distinguishing features of PTSD is increased physiologic reactivity to traumatic images and to loud tones. It is plausible that years of untreated PTSD with associated elevation in stress hormones could contribute to the development of hypertension. Therefore, I strongly support [the Veteran's] claim linking his PTSD to the development of hypertension and associated health problems. While Dr. K.V. did not explicitly state that he believes that the Veteran's hypertension was at least as likely as not caused or aggravated by the Veteran's service connected PTSD, the Board found that Dr. K.V.'s statement that he "strongly supports [the Veteran's] claim linking his PTSD to the development of hypertension" at least raised the possibility of a nexus between the Veteran's hypertension and service. Accordingly, the issue of entitlement to service connection for hypertension was remanded in June 2010 for VA examination and medical opinion regarding etiology. Accordingly, the Veteran was afforded a VA examination in August 2010 in which the VA examiner concluded that the Veteran's hypertension [came] on many years after leaving service; his hypertension at this point was not related to active service. The examiner also opined that "there is not at this point any known real link between [the Veteran's] hypertension and his posttraumatic stress disorder or to diabetes." Unfortunately, the examiner failed to provide a rationale for this conclusion. A medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the issue was again remanded in October 2011 to afford the Veteran a new VA medical opinion. In November 2011, the VA examiner reached the following conclusion: The hypertension began post service. [The Veteran's] hypertension at this point is not caused by service. There is no causal relationship between hypertension and diabetes type II. The latter is a hormonal issue. Hypertension are caused by intrinsic heart disease, atherosclerosis, obesity, thyroiditis, renal artery stenosis, or pheochromocytoma. Unfortunately, while the examiner addressed the relationship or lack thereof between the Veteran's hypertension and type II diabetes, he failed to address the relationship between the Veteran's hypertension and PTSD. The Veteran representative challenged the adequacy of the November 2011 VA opinion and in an August 2012 brief cites to a list of journal articles that find a connection between heart conditions, including hypertension, and stress related psychiatric disabilities such as PTSD. However, as noted above, the RO scheduled the Veteran for a VA examination in October 2012 to remedy any issues with the November 2011 examination. The Veteran was notified of the examination but failed to appear. The Veteran nor his representative have given any explanation for the Veteran's inability to make the most recently scheduled examination in October 2012, and he has not called the RO to request a new examination date. Thus, the evidence that would have been obtained on examination cannot be considered. However, in light of the extensive efforts already expended by VA, and inasmuch as the Veteran has not provided good cause for his failure to report for his last scheduled examination, there is no reason to believe that an additional VA examination notice would produce any different results. That is, despite the aforementioned issues with the prior VA examinations and opinions offered above, it is clear that the VA examiners have consistently attempted to opine that the Veteran's hypertension is not related to service or to his service-connected diabetes mellitus and/or PTSD. In arriving at this decision, the Board notes that VA's duty to assist the Veteran in the development of his claim is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). Rather, VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 406 (1991). In light of the above, the Board will decide the Veteran's appeal based on the evidence of record. In this case, the weight of the record of evidence indicates that the Veteran did not have hypertension in service, has not experienced continuous hypertension symptomatology since service, hypertension was not present within one year after separation from service, and he does not currently have a diagnosis of hypertension that was caused or aggravated by his service-connected diabetes mellitus or PTSD. For these reasons, service connection for hypertension must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for hypertension, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The best evidence in this case clearly indicates no connection between the disability at issue and the service connected problems or service. Even the single piece of medical evidence that, arguably, supports this claim suggesting a "link" does so in a way that is, at best, highly speculative. The journal articles that find a connection between heart conditions, including hypertension, and stress related psychiatric disabilities such as PTSD does not support a finding that in the Veteran's case there is such a connection or that it is at least as likely as not related to a service connected problem. The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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. 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 Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (the Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection. The veteran must also be informed that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify and assist was satisfied by letters sent to the Veteran in November 2004 and March 2006. These letters informed the Veteran of what evidence was required to substantiate his claims and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. However, some of these notice letters were not provided to the Veteran prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or a supplemental statement of the case, is sufficient to cure a timing defect). Although the March 2006 notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a statement of the case issued in July 2006. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). It appears that all evidence necessary for a fair adjudication of the claim is of record. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA examinations. As noted above, the Veteran received notification of a scheduled examination in October 2012; however, he failed to report to the scheduled examination. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood, 1 Vet. App. 190, 193; see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Based on the above, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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 v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus and PTSD, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs