Citation Nr: 1311746	
Decision Date: 04/09/13    Archive Date: 04/19/13

DOCKET NO.  05-32 667	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for hypertension, including as secondary to service-connected type II diabetes mellitus (DMII) and/or service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1965 to October 1968, including service in the Republic of Vietnam.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in relevant part, denied the benefit sought on appeal.

In October 2010 and January 2012, the Board remanded the Veteran's claim on appeal for further development.  In the October 2010 decision, the Board additionally denied claims of entitlement to service connection for left ear hearing loss and for a respiratory disorder.  Accordingly, those issues are no longer on appeal before the Board.

In May 2012 and June 2012, the Veteran submitted additional medical evidence after his claim had last been adjudicated in the April 2012 supplemental statement of the case (SSOC).  He additionally submitted a waiver of RO consideration for this evidence in May 2012.  Accordingly, the newly submitted evidence will herein be considered.  See 38 C.F.R. § 20.1304 (2012).


FINDINGS OF FACT

1.  Service connection is in effect for both DMII and PTSD.  

2.  The evidence of record does not support a finding that the Veteran's hypertension is etiologically related to his active service.

3.  The evidence of record does not support a finding that the Veteran's hypertension is proximately due to, or has been aggravated by, his service-connected DMII or PTSD.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for hypertension, including as secondary to service-connected DMII and/or PTSD, have not been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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).  

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA 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).  Where complete notice is not timely accomplished, such error may 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); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran has received essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004).  A January 2005 VCAA letter from the RO informed the Veteran of all elements required by 38 C.F.R. § 3.159(b).  A second VCAA letter, compliant with the notice requirements of Dingess, was issued in April 2008.  Although this letter was issued after initial adjudication of the Veteran's claim in the March 2005 rating decision, this timing deficiency was cured by readjudication of the claim in an October 2008 rating decision and in SSOCs in October 2008, May 2010, August 2011, and April 2012.  

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of service treatment records and pertinent post-service treatment records, and providing an examination when necessary.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment.  Moreover, his statements in support of his claim are of record.  

The Veteran has additionally been afforded multiple VA examinations with respect to his claim, and the Board requested an additional medical expert opinion from a health care professional in VA's Veterans Health Administration (VHA) pertaining to the Veteran's contended theories of entitlement for hypertension.  See 38 C.F.R. § 20.901(a) (2012) (the Board may obtain a medical opinion from an appropriate health care professional in the VHA of VA on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (rev'd on other grounds by Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)).  

Moreover, the Board finds that the RO/AMC substantially complied with the Board's January 2012 remand directives.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  In this regard, the Board remanded the Veteran's claim in order to obtain clarification from the examiner that conducted the October 2010 VA examination with respect to whether the Veteran's hypertension was at least as likely as not due to his service.  The Board additionally requested that the examiner provide additional opinions with respect to whether the Veteran's hypertension was at least as likely as not caused by or aggravated by his service-connected DMII or service-connected PTSD.  An additional VA medical opinion responding to the questions posed in the January 2012 remand was provided in March 2012.  An additional opinion was obtained in September 2012.

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the Veteran's 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).

II.  Service Connection

The Veteran contends that he incurred hypertension during or as a result of his active service.  In the alternative, he contends that hypertension was caused or aggravated by his service-connected DMII and/or service-connected PTSD.  

      A.  Governing Law and Regulations

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  

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).  

Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).  

Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder.  See 38 C.F.R. § 3.310(a) (2012).  A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the non-service-connected disease or injury.  See Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994).  There must be competent evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected.  See 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995).  In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury.  See 38 C.F.R. § 3.310(b) (2012).  In cases of aggravation of a Veteran's non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  See 38 C.F.R. § 3.322 (2012).  

In making all determinations, the Board must fully consider the lay assertions of record.  Davidson, 581 F.3d 1313.  A layperson is competent to report on the onset and continuity of 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, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  

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, 492 F.3d at 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, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  The 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, 2 Vet. App. at 618.

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, 7 Vet. App. at 511.

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.").  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

      B.  Analysis

At the outset, the Board notes that service connection has been in effect for both DMII and PTSD since December 2004.

Based on a review of the record, the Veteran clearly has currently diagnosed hypertension.  Notably, recent diagnoses were made during VA examinations conducted in November 2009 and in October 2010.  Accordingly, the Board finds that the current disability requirement for service connection for hypertension basis has been met.  See Davidson, supra; see also Wallin, supra.

A review of the service treatment records (STRs) reveals no indication that he was diagnosed with or treated for hypertension during his active service.  During his November 1965 enlistment examination, the Veteran was found to have a blood pressure reading of 139/86.  A slightly elevated blood pressure reading of 130/90 was later noted during his October 1968 separation examination.  No additional evidence pertaining to blood pressure readings or hypertension is found in his STRs.

The earliest post-service evidence of treatment for hypertension is found in private treatment records dated beginning in November 1999.  A November 1999 treatment report revealed that the Veteran had a previous medical history of hypertension.  He was formally diagnosed with hypertension during a January 2000 private consultation.  Evidence of periodic treatment for hypertension is present throughout his private treatment records.  An August 2005 letter from his private physician, G. M. V., M.D., noted that the Veteran had been hypertensive for many years.  He did not, however, provide a date for the onset of hypertension. 

During his aforementioned November 2009 VA examination, the VA examiner commented on the etiology of the Veteran's hypertension by indicating that where his hypertension preceded the development of his DMII by 20 years, and where there was no known history of kidney disease for the Veteran, it was his opinion that the Veteran's hypertension was not connected to his DMII.  

Because the VA examiner's opinion did not address whether the Veteran's hypertension may be directly related to his military service, the Board remanded his claim for an additional VA examination in October 2010.  The Veteran was afforded this new VA examination later in October 2010.  During the examination, he reported to the examiner that he had been diagnosed with hypertension in 1968, at the time of his separation from service.  He reported being given blood pressure medications at a later point while he was in his 30's.  

After formally diagnosing the Veteran's hypertension, the VA examiner indicated that the earliest evidence of record of a hypertension diagnosis was in January 2000, and that she did not believe that the Veteran began using medication to treatment hypertension until the late 1990's, but she could not find an exact date.  She indicated that the single reading of elevated blood pressure in the Veteran's October 1968 separation examination appeared to be an isolated incident.  

With respect to the possibility that the Veteran's hypertension was caused or aggravated by DMII, the VA examiner noted that there was no evidence of renal dysfunction in the Veteran's record, and in the absence of renal disease, hypertension is neither caused by nor aggravated by diabetes mellitus.  She thus opined that the Veteran's hypertension was not caused by, aggravated by, or a result of his hypertension.  The examiner also provided the opinion that the Veteran's diagnosed PTSD did not cause or aggravate his hypertension.  With respect to this opinion, however, the VA examiner did not provide a rationale.  

Noting deficiencies in the October 2010 VA examination report, the Board remanded the Veteran's claim again in January 2012 to obtain addendum to the October 2010 VA examination report to address these issues.

In March 2012, the VA examiner reviewed the Veteran's claims file and provided an addendum to her prior October 2010 VA examination report.  In the addendum report, the VA examiner again noted that the Veteran's elevated blood pressure reading at separation was an isolated incident, and she again noted her belief that the Veteran did not receive treatment for hypertension until the late 1990s.  She further indicated that there was a 30 year gap between his separation from service and his first diagnosis of hypertension of record in January 2000.  Based on these findings, she provided the opinion that the Veteran's hypertension was less likely as not caused by or a result of his military service.  With respect to whether the Veteran had a pre-hypertensive condition at discharge, she indicated that it was impossible to say whether or not the one blood pressure reading was the beginning of a pattern of elevated blood pressure without knowing what happened in the ensuing years.  

The examiner then reiterated her opinion that the Veteran's hypertension was not a complication of his diabetes mellitus.  She based this opinion on the fact that he did not have renal disease as evinced by laboratory findings in December 2011, and that in the absence of renal disease, there was no connection between diabetes and hypertension.  

With respect to the possibility that the Veteran's hypertension was aggravated by PTSD, the examiner indicated that she found nothing in medical literature that supported a finding that hypertension was worsened by PTSD.  Thus, she opined that his hypertension was not aggravated by PTSD.

In May 2012, the Veteran submitted additional evidence, including a medical treatise that discussed the potential relationship between PTSD and developing hypertension.  

Based on the Veteran's submission, in July 2012, the Board sought an additional medical opinion as to the etiology of his diagnosed hypertension from a VHA specialist.  In September 2012, a VHA specialist in internal medicine reviewed the claims file and provided medical opinions regarding the etiology of the Veteran's hypertension as requested by the Board.  

With respect to whether the Veteran's hypertension was at least as likely as not incurred as a direct result of his active service, the VHA examiner noted that after a review of the Veteran's STRs, he noted only a single reading of elevated blood pressure of 130/90 on the Veteran's 1968 separation examination, and that a single elevated reading would not suffice to diagnose a patient with hypertension, as such would require multiple elevated readings over time.  The specialist noted that although the Veteran reportedly had been prescribed antihypertensive medication previously, there was no documentation of a diagnosis of hypertension until January 2000.  The specialist noted that based on the Veteran's reports there would at minimum be a 10-year gap between the single borderline blood pressure reading at separation and the diagnosis and treatment for hypertension.  Given this available data, the VHA specialist concluded that the Veteran's hypertension was less likely as not due to his military service.

With respect to whether the Veteran's hypertension was caused by or aggravated by his DMII, the VHA specialist indicated that there was no known direct causal or aggravating relationship between the two conditions, except as mediated through renal disease.  Where the Veteran did not have any known kidney disease, the specialist indicated that he concurred with the prior (October 2010 and March 2012) VA examiner's opinion that the Veteran's hypertension was less likely as not caused by or aggravated by diabetes mellitus.  Although the VHA specialist mistakenly reversed the order of the two disabilities in the report, by specifically noting that the Veteran's diabetes mellitus was less likely as not caused by or aggravated by hypertension, based on the opinion requested by the Board in July 2012, and based on the correct order noted by the prior VA examiner, the Board finds this error to be of minimal significance and garners from the information in the report that the overall intention of the VHA specialist was to indicate that the Veteran's hypertension was not caused or aggravated by his diagnosed DMII. 

Finally, with respect to whether the Veteran's hypertension may have been caused or aggravated by diagnosed PTSD, the VHA specialist indicated that after surveying published medical literature, including the article provided by the Veteran, he was of the opinion that PSTD may be a contributing factor to the development of hypertension and may aggravate existing hypertension, but that his opinion was based on limited epidemiological evidence, which is always subject to confounding, and that further study was needed to confirm the potential association.  He further noted that essential hypertension was a multifactorial condition with genetics, diet, and other exposures contributing to the development of hypertension to a greater or lesser degree in any one individual.  In the Veteran's case, the specialist noted that there were at least several known risk factors for the development of hypertension, including obesity, and obstructive sleep apnea, and where the current state of medical knowledge has yet to define with precision the relationship between PTSD and hypertension, his opinion was that it was less likely as not that the PTSD caused or aggravated the Veteran's hypertension.  

Based on review of the lay and medical evidence of record, including the September 2012 VHA specialist's thorough opinion, there is no support for a finding that the Veteran's hypertension is etiologically related to his military service on a direct or secondary basis.  In this regard, the Board finds that taken together, the opinions provided by the VA examiner in March 2012 and by the VHA specialist in September 2012 are well-informed, well-reasoned and fully articulated.  With respect to a direct relationship between the Veteran's hypertension and his active service, both clinicians noted a lack of evidence of a hypertension diagnosis during service, and that by the Veteran's report of receiving blood pressure medications in his 30's, there was a gap of a approximately 10 years between his separation from service and the commencement of his taking blood pressure medication.  Both clinicians additionally noted a lack of evidence connecting hypertension to DMII except through known renal disease, which the Veteran was specifically found not to have.  Finally, both clinicians noted an absence of clear medical research associating hypertension with PTSD, and the VHA specialist further noted the higher probability that the Veteran's hypertension was associated with multiple other risk factors, including obesity and sleep apnea, thus mitigating any association with his PTSD.

Although the Veteran contended at one point during his October 2010 VA examination that he was diagnosed with hypertension at the time of his separation from service, there is no evidence to support his contention that such a diagnosis was made.  It appears rather, that he was basing the supposed hypertension diagnosis on the one elevated blood pressure reading during his separation examination.  He then seemingly repudiated this contention by reporting that he began receiving blood pressure medications when he was in his 30's, approximately 10 years after his separation from service.  The Board notes that the Veteran is not competent to diagnose hypertension, and moreover, there is no reason to believe that he would not have been provided medication to treat hypertension at an earlier date if indeed an earlier diagnosis had been made.  See Jandreau, supra.  

Similarly, the Board notes that all medical evidence indicates that the Veteran's hypertension diagnosis preceded his DMII, which was not diagnosed until March 2002.  The medical opinions of record specifically note that there is no known connection between DMII and hypertension in the absence of mediating kidney disease, any association is further discounted by the evidence of record.  

Accordingly, the Board finds that the evidence of record fails to show that the Veteran's hypertension had its onset during service or is otherwise related to service, to include as on a secondary basis by means of his service-connected DMII or PTSD.  Where the Veteran is not professionally qualified to give a medical diagnosis or to provide a medical etiology regarding the onset of his hypertension, and where there is no competent or credible evidence of record showing that his hypertension had its onset during service or is otherwise related to any in-service disease, event, or injury, including as a result of service-connected DMII or PTSD, service connection for hypertension must be denied.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377 n.4.

For the reasons and bases provided above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for prostate cancer.  See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997).  The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations.  See 38 U.S.C.A. §5107 (West 2002).  Accordingly, the Veteran's claim for service connection for prostate cancer is denied.


ORDER

Entitlement to service connection for hypertension is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs