Citation Nr: 1311104	
Decision Date: 04/03/13    Archive Date: 04/19/13

DOCKET NO.  09-20 426	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Bredehorst
INTRODUCTION

The Veteran served on active duty from June 1954 to January 1958 and from May 1960 to October 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of a special processing unit (Tiger Team) at the Cleveland RO and a July 2008 rating decision of the Houston RO.

In September 2012, the Veteran testified at a local hearing before the undersigned (Travel Board hearing); a transcript of this hearing is associated with the claims file.  Thereafter, the Board remanded the matter in January 2013 for additional development.

In the January 2013 remand, the Board noted that the Veteran appeared to be submitting evidence for a claim of entitlement to individual unemployability (TDIU) even though the issue was adjudicated in a June 2007 rating decision and the Veteran was given notice of the decision.  The Board referred the matter to the RO for clarification, but the record does not reflect that there has been any communication with the Veteran regarding this matter.  Therefore, the Board is referring the matter again.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

Hypertension was not manifested in service or during the first post-service year, and a preponderance of the evidence is against a finding that the disability is related to service or proximately due to (caused or aggravated) by the service-connected diabetes mellitus.


CONCLUSION OF LAW

The Veteran's hypertension is not due to a disease or injury that was incurred in or aggravated by active duty service, it is not presumed to have been incurred in active service, and it is not caused or aggravated by the service-connected diabetes mellitus.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

VCAA applies to the instant claim.  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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 VCAA notice 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) (including as amended effective on May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)).

VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of VCAA applied to all 5 elements of a service connection claim (i.e., to include the rating assigned and the effective date of award). 

A December 2007 pre-decisional letter informed the Veteran of the evidence and information necessary to substantiate his claim, the information required of him to enable VA to obtain evidence in support of his claim, and the assistance that VA would provide to obtain information and evidence in support of his claim.  He was also given notice of disability ratings and the effective dates of awards.

The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A (West 2002). 

The service treatment records are associated with his claims file, and VA has obtained all pertinent records that could be obtained.  The Veteran underwent VA examinations and the RO obtained opinions; the findings are adequate to decide the claim.  See Barr v. Nicholson, 21. Vet. App. 303 (2007); see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  In this regard, the Board remanded the matter in January 2013 to obtain clarification from the October 2010 VA examiner regarding the opinion that was provided as to the etiology of the claimed disability.  Adequate clarification was obtained in January 2013; therefore, the Board concludes that there has been substantial compliance regarding the remand instructions.  See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a 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).

The Veteran was also provided with a Travel Board hearing in September 2012.  Under 38 C.F.R. § 3.103(c)(2) (2012), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's duties under section 3.103(c)(2) are twofold.  First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id., at 496.  Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.

Here, on pages 2, 5, 6, and 7 of the hearing transcript, the undersigned identified the issue on appeal and noted additional evidence the claimant should submit to support his claim..  Thus, the duties of the hearing officer were satisfied. 

Based on the above, the Board finds that VA's duty to assist is met.


Legal Criteria

The law provides that service connection may be granted for a disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110.  The resolution of this issue must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which the claimant served, his medical records and all pertinent medical and lay evidence.  Determinations relative to service connection will be based on review of the entire evidence of record.  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 is focused upon (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic."  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2012).  To establish service connection based on continuity of symptomatology, the claimant must have one of the chronic diseases enumerated at 38 C.F.R. § 3.303(a).  Walker v. Shinseki, __ F.3d __, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013).  

Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310(a). 

When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). 

Secondary service connection shall be awarded when a disability is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

Service incurrence may be presumed for some chronic disorders, including hypertension when demonstrated to a compensable degree within one year following separation from service.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when 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);

(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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, lay persons are competent to provide opinions on some medical issues.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  Specifically, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  However, laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 


Analysis

The Board has reviewed all of the evidence in the Veteran's claims file.  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 Veteran 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 his hypertension is related to his service-connected diabetes mellitus.  

Briefly, the legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability which is service- connected; and (3) competent evidence of a nexus between the two. 

Here, service connection for diabetes mellitus was established in a February 2002 rating decision and the Veteran currently has a diagnosis of hypertension.  As for whether there is a nexus between the two disabilities, the record contains conflicting evidence.

The Board has the duty to assess the credibility and weight to be given to the evidence.  See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  In assessing such evidence, whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).

The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion."  Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1993).

A medical opinion is afforded substantial weight when it is factually accurate, fully articulated, has sound reasoning for the conclusion; it is not just the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In support of his claim, he notes that the physician who conducted an April 2007 QTC VA examination provided an opinion in favor of his claim.  The purpose of this examination was to address the Veteran's diabetes mellitus and other disorders, but not hypertension.  However, in the course of the examination, the physician indicated that the Veteran did not have a history of hypertension but diagnosed the disorder based on objective factors.  There is no notation in the report as to whether the examiner had the claims file available for review, but it does show that the history provided was related by the Veteran.  He opined that the Veteran's hypertension is most likely a complication of the diabetes, given the known cardiovascular effects of diabetes as well as the recent onset in a person who was previously diagnosed with diabetes.  Although this opinion clearly supports the Veteran's contention, it is not the only opinion of record that must be considered.

The Veteran underwent additional examinations and other opinions were offered that were against the claim.  The first such opinion was offered by a VA examiner in June 2005.  The physician did not have the claims file available for review, but obtained a history from the Veteran.  He opined that the Veteran had mild hypertension that is not at least as likely as not associated with diabetes mellitus as there is no renal involvement.  

In October 2010, the Veteran underwent a VA examination in which the claims file was clearly reviewed and the examiner noted that the onset of hypertension was in 2005.  Other aspects of the Veteran's medical history were also noted.  Although the examiner provided an opinion in support of the claim, namely, that the Veteran's hypertension is at least as likely as not caused by or a result of diabetes mellitus, the rationale conflicted with the opinion.  In this regard, the examiner explained that if diabetes causes renal failure then the resultant effect of this condition on intravascular volume may affect blood pressure.  However, there was no evidence of impaired renal function or recent lab tests.  Elevation of blood sugars from diabetes does not cause or aggravated in increase in the blood pressure within the blood vessels.  He further explained that the role of high insulin levels (present in diabetics) in raising arterial pressures is unclear and not established.  Diabetes as an endocrine condition is not a documented cause of secondary hypertension.  Therefore, due to the lack of pathophysiological relationship between the Veteran's diabetes and the development or aggravation of hypertension, it is unlikely that his diabetes has affected the high blood pressure condition.  The examiner also included a citation to medical source as a reference.

Due to the obvious contradiction of the rationale to the opinion, the claims file was returned to the VA examiner who re-examined the Veteran and provided clarification in January 2013.  On this occasion, he opined that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's service-connected condition.  He explained in his rationale that in the October 2010 examination report he mistakenly checked the wrong option regarding the nexus opinions and that the statement should have read, "it is unlikely that his hypertension was caused or aggravated by his service-connected diabetes."  The physician added that the rationale is essentially the same.  He also added the citation of another medical source for a second reference.

While all of the examiners are competent to offer an opinion, the Board finds that the January 2013 examiner provided the most probative one.  He not only reviewed the claims file, demonstrated an understanding of the medical history, and examined the Veteran, but he also provided a very thorough explanation of his rationale, clarified the reason for his earlier mistake, and cited to medical sources that supported his opinion.

In contrast, it is unclear if the April 2007 QTC VA examiner had the claims file to review.  While review of the claims file is not critical, it is one means by which the examiner may become familiar with the medical history and obtain an accurate factual background.  Here, the examination report suggests that the claims file was not available for review and despite having the Veteran available to obtain an accurate history, he did not appear to have been sufficiently familiar with the medical history.  A case in point, the physician indicated hypertension was a new diagnosis, but the claims file contains a hypertension diagnosis that was made years earlier.  Furthermore, the examiner's rationale is not nearly as complete as the one provided by the January 2013 VA examiner.  The QTC examiner merely indicated that diabetes had known cardiovascular effects and that the Veteran had a prior diagnosis of diabetes with a recent diagnosis of hypertension.  Although he indicated that there are "known cardiovascular effects" he did offer any more detail or cite to any medical sources that supported the opinion.  On its face, the rationale is not deficient, but given the detail and thoroughness of the January 3013 examiner, the QTC rationale is not as strong, comparatively speaking.

Since the Board finds that the January 2013 opinion is more probative than the April 2007 opinion, a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service-connection on a secondary basis is denied.

The Board also considered whether the claim for service connection may be granted on a direct basis.  Even though there is conflicting evidence as to the onset of the Veteran's hypertension, the evidence does not show that it first manifested in service or to a compensable degree within the first post-service year.

The Veteran's service treatment records do not show that the Veteran had hypertension during service.  For VA purposes, hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.  To support a diagnosis of hypertension the blood pressure readings must be taken two or more times on at least three different days.  See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). 

A July 1976 service treatment record from a cardiac clinic shows the Veteran reported that he was examined in 1974 prior to donating blood and that he was found to be mildly hypertensive.  Notably, he attributed the elevated blood pressure reading to strenuous activity prior to the examination.  He also noted that all previous and subsequent blood pressure readings were within normal limits.  Indeed, all blood pressure readings contained in his service treatment records are within normal limits.

The earliest post-service treatment records associated in the claims file date back to 1996 and make no reference to hypertension.  Although a blood pressure reading was not taken, an October 1996 treatment record indicates that he did not have a history of hypertension.

Since hypertension was not diagnosed in service or manifested to a compensable degree in the first post-service year, service connection for hypertension on the basis that it was diagnosed in service (and has persisted), or on a presumptive basis (as a chronic disease under 38 U.S.C.A. § 1112 ) is not warranted.

The Veteran was first noted to have a history of hypertension in October 2002.  However, since the blood pressure readings are essentially within normal limits between October 1996 when he did not have a history of hypertension and October 2002 when he reportedly had a history of hypertension, a prior diagnosis is not substantiated.  The only exception regarding the blood pressure readings during this period is found in an April 1999 treatment record when the reading was reported as 148/93.  Despite the elevated reading, there was no diagnosis of hypertension.  

The first clear diagnosis of hypertension, rather than notations showing a history of hypertension, was made by a June 2005 VA examiner.  Even if the Board were accept a diagnosis of hypertension as far back as 2002, there is still decades between service and the first documented complaints or findings of hypertension.  While such a lengthy period is not dispositive, it weighs heavily against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

There is also an opinion of record that directly addressed this matter.  The January 2013 VA examiner opined that the claimed condition (hypertension) was less likely than not incurred in or caused by an in-service injury, event, or illness.  The rationale was that the service treatment records show normal blood pressure readings throughout the Veteran's service.  He had no medical problems which would predispose him to the later development of hypertension such as kidney disease or an endocrine disorder.  His hypertension was also diagnosed greater than 30 years after his military career.  Once essential hypertension is present, it usually persists indefinitely until treated.  As he has had regular medical care since discharge it is unlikely hypertension was present in the immediate period following military retirement and not detected.

The examiner's well-reasoned opinion is highly probative in this case and there is no competent evidence of record that contradicts the opinion.  Thus, the Board finds that a preponderance of the evidence is also against finding that service connection for diabetes mellitus is warranted on a direct basis.  As such, the benefit-of-the-doubt doctrine does not apply and the claim is denied.


ORDER

Service connection for diabetes mellitus is denied.



____________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs