Citation Nr: 1311751 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 02-06 796A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active military service from January 1968 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2000 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, the Board referred the case to the Veterans Health Administration ("VHA") for a medical opinion from an Internist concerning the etiology of the Veteran's claimed hypertension. In October 2012, the opinion was received and associated with the claims folder; the Veteran and his representative were subsequently furnished a copy of the opinion and advised that the appellant had 60 days to submit relevant evidence or argument in response. See 38 C.F.R. §§ 20.901, 20.903 (2012). In February 2013 the Veteran, through his appointed representative, submitted further written argument in support of the claim. FINDINGS OF FACT It has not been shown by competent and probative evidence that the Veteran incurred hypertension in service, that hypertension is otherwise attributable thereto, that hypertension was caused or aggravated by service-connected diabetes mellitus, type II, major depressive disorder (MDD), hidradenitis suppurativa, hiatal hernia with gastroesophageal reflux disease (GERD), or diabetic neuropathy of the lower extremities, or that hypertension manifested to a compensable degree within the first post-service year. CONCLUSION OF LAW Service connection for hypertension is not established, including as secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant with notice by way of post-decisional letters in August 2001 and March 2006, which, when considered as a whole, informed him of the standards for establishing service connection, including as on a secondary basis, and his and VA's respective responsibilities for obtaining evidence. The March 2006 letter addressed the rating criteria and effective date provisions related to his claim. The claim was subsequently readjudicated following the provision of adequate notice. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Moreover, any error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of his claimed hypertension, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veterans Health Administration opinion obtained in this case is adequate. It was predicated on a review of the record and was supported by an adequate rationale such that the Board can render an informed determination. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The Veteran seeks service connection for hypertension, including as secondary to service-connected disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases, such as cardiovascular-renal disease (including hypertension), may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may also be granted for any disease listed at 38 C.F.R. § 3.309(e), even though there is no record of such disease during service, provided that the provisions of 38 C.F.R. § 3.307(d) are met. Service connection is warranted for a disability which is aggravated by, proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition is considered a part of the original condition. Id. The provisions of 38 C.F.R. § 3.310 were amended in 2006. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amended regulation provides that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, will be service-connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent changes amount to a substantial change. See Allen, 7 Vet. App. at 447-449. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which favors the Veteran. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A review of the service treatment records (STRs) does not disclose any complaints of, treatment for, or diagnosis of hypertension. A December 1967 enlistment examination report indicates the Veteran's blood pressure was 110/76. Subsequent blood pressure readings were as follows: February 1972 (136/84), August 1972 (140/90), July 1974 (118/72), June 1975 (120/80), August 1975 (120/84), April 1977 (112/78, 138/88 (right arm), 134/80 (left arm), April 1979 (120/80), July 1979 (118/70), January 1980 (118/72, 120/80), February 1980 (126/70), March 1980 (110/74), July 1980 (110/74), November 1980 (110/74), February 1981 (120/70, 112/80), May 1981 (130/92, 120/78), February 1983 (140/84 (recumbent), 136/88 (sitting), March 1983 (110/68), September 1983 (130/80), November 1983 (110/78, 122/82), February 1984 (100/80); April 1984 (110/76), May 1984 (120/80), June 1984 (120/70, 116/78, 126/70), October 1985 (140/92 (while exercising); 148/100 (while exercising); 160/98 (while exercising); 172/100 (while exercising); 126/90 (resting), 190/96 (after exercise), November 1985 (129/81), and May 1987 (130/90). During a retirement examination dated in October 1987 the Veteran's blood pressure measured 128/86. Of record is a March 1991 VA treatment record pertaining to treatment for boils in the groin area and buttocks. At this time, the Veteran's blood pressure measured 142/102. In April 1995 the Veteran was provided a VA general medical examination. During the examination the Veteran denied having diabetes mellitus or hypertension. Physical examination revealed blood pressure readings of 140/100 while sitting, 130/100 recumbent, and 130/100 while standing. The diagnosis was hypertension, systemic, presently untreated. During his January 2002 decision review officer (DRO) hearing, the Veteran testified that he was told in service that he was borderline hypertensive. He asserted that his condition began in service, as opposed to being either caused or aggravated, i.e., secondary, to any service-connected disability. He denied any treatment for hypertension in service or that any treatment plan had been devised for him to follow. He noted that he had been on medication for his hypertension for about a year. During his June 2003 Board hearing, the Veteran testified that his hypertension first started in service. He again related that he was informed in service that his blood pressure was borderline. He related that he had not had any treatment therefor and "never did hear anything else about it." With respect to the aforementioned hearings, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ and decision review officer both noted the current appellate issue at the beginning of each hearing, and obtained information concerning the Veteran's contentions and treatment history. Following the hearings, the case was remanded multiple times in order to obtain additional VA treatment records, Social Security Administration records and to afford the Veteran VA examinations. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearings. In September 2007 the Veteran was provided a fee-basis VA examination. During the examination the Veteran reported having a history of hypertension for ten years and was taking medication for the condition. Blood pressure readings were 170/80, 160/78, and 170/90. The diagnosis was essential hypertension. The examiner opined that the hypertension was not a secondary complication of diabetes mellitus. She further opined that the Veteran did not have a non-diabetic condition that was aggravated by the diabetes mellitus. The examiner did not provide an opinion on direct service connection. In August 2009 the Veteran was provided a VA hypertension examination. The examiner noted that the claims folder was reviewed. At the time of the examination the Veteran reported that he was diagnosed as having hypertension prior to his March 2001 diagnosis of diabetes mellitus. He reported that he had hypertension in service for three to four years prior to his retirement with no follow-up, however. A review of the STRs showed that the Veteran had isolated elevations of blood pressure but also showed many normal blood pressure readings noted in-between and on his retirement physical examination. He also reported that he did not have hypertension for a while after his retirement. The diagnosis was hypertension, essential in etiology. The examiner noted that medical records do not provide evidence that sustained hypertension was present during his military service. The examiner further noted that the normal microalbumin indicates that diabetes mellitus did not cause problems with nephropathy, which could contribute to development of hypertension and/or worsening of hypertension. The examiner opined that the Veteran's service-connected diabetes mellitus had neither caused nor aggravated his hypertension. The examiner noted that medical records do not provide evidence that sustained hypertension was present during his military service. The Veteran was afforded another VA examination in March 2012. The examiner noted the claims file had been reviewed. Negative etiological opinions were rendered regarding both direct and secondary service connection. In terms of direct service connection, the examiner concluded that hypertension was less likely than not incurred in or caused by in-service injury, event or illness. She reasoned, based upon a review of the STRs that the Veteran had infrequent and relatively mild sporadic evaluations during service, but no "sustained hypertension." She found it salient that upon undergoing a retirement physical his blood pressure measured 128/86, which was normal. In terms of secondary service connection, the examiner further explained that the claimed condition was less likely than not proximately due to, or the result of, the Veteran's service-connected condition, i.e. diabetes mellitus, type II. In this regard, the examiner explained that despite diabetes, the Veteran's renal function fortunately remained normal, including his urinary microalbumen. Thus, she reasoned that there was no evidence of even mild diabetic nephropathy and concluded therefore that his diabetes had not caused or aggravated his hypertension. The examiner also went on to state that the Veteran's other service-connected problems, including MDD, hidradenitis suppurativa, hiatal hernia with GERD and diabetic neuropathy of the lower extremities did not cause or aggravate hypertension. The examiner, however, did not provide a rationale for her opinion. Thus, the Board sought the aforementioned VHA opinion. VA's duty to assist includes obtaining an adequate examination or opinion when such is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In the VHA opinion, the physician was asked to address whether the Veteran's MDD, hidradenitis suppurativa, hiatal hernia with GERD and diabetic neuropathy of the lower extremities, either caused or aggravated his hypertension. The physician addressed each disorder in turn. In regards to MDD, the physician concluded that it was less likely than not that this condition either caused or aggravated hypertension. In terms of direct causation, the physician noted that the Veteran had a diagnosis of MDD for which he had been intermittently hospitalized. During each hospital admission the Veteran was noted to have been normotensive. While stressful situations can result in the elevation of blood pressure, it is not the nature of major depressive disorder to cause a patient to be hypertensive. Thus it was not at least as likely as not caused by or due to his service-connected major depressive disorder. The physician also determined that hypertension was not likely aggravated by MDD as the Veteran was normotensive during his admissions for treatment thereof. In regards to hidradenitis suppurativa the physician noted that this was a chronic follicular occlusive disease involving the intertriginous skin of the axillary, groin, perianal, perineal and inframmamary regions, with a highly variable clinical course. In terms of causation the physician stated flatly that hypertension was not in any way pathophysiologically related to hidradenitis suppurativa. In terms of aggravation, the physician likewise felt that it was not likely that hypertension had been aggravated (increased in severity beyond normal progression) by the condition, as a review of his dermatology appointment records showed that the Veteran was normotensive at those times. For hiatal hernia with GERD, the examiner also rendered negative opinions. She explained that GERD may be associated with esophageal complications, including esophagitis, peptic stricture and Barrett's metaplasia, and a number of extraesophageal complications. However, systemic vascular changes and hypertension were not complications of GERD. She further explained that the Veteran was noted to have significant gastroesophageal reflux and hiatal hernia, confirmed in 2001, and that there was no evidence showing hypertension during ongoing treatment for reflux prior thereto. Thus, she concluded that the Veteran's hypertension was not likely caused by hiatal hernia with GERD. She also determined, for identical reasons, that the Veteran's hypertension was not aggravated beyond the natural progress by hiatal hernia with GERD. The physician also concluded that hypertension was not caused or aggravated by service-connected diabetic neuropathy of the lower extremities. She explained that diabetic neuropathy was primarily a symmetrical sensory neuropathy, initially affecting the distal lower extremities. She explained, also, that systemic vascular changes are complications of untreated diabetes. However, a review of the claims file showed that the Veteran's hypertension had superseded his diagnosis of diabetic neuropathy; thus she concluded that hypertension was not caused by diabetic neuropathy of the lower extremities. In regard to aggravation, she explained that the Veteran had been treated with oral medications and that clinic notes showed good control of his blood glucose level. Disease progression to the point of systemic vascular changes was a complication of untreated diabetes, however, the Veteran was noted as being normotensive during clinic visits for pain related to diabetic neuropathy. She concluded that it was not likely that hypertension was aggravated (i.e. increased in severity beyond natural progression) by diabetic neuropathy of the lower extremities. Lastly, the physician addressed whether the Veteran had incurred hypertension in service or whether the condition was otherwise attributable thereto. In this regard, she noted that the Veteran had had isolated episodes of elevation in his blood pressure, documented in the STRs, which, however, were noted during periods of infection or physical activity. She thus explained that hypertension was not incurred in service, or otherwise related thereto, as even during periods of elevated blood pressure the Veteran was not hypertensive as he was exerting himself or acutely ill. The Board notes that there are three notes to Diagnostic Code 7101, which set forth the criteria for the evaluation of service-connected hypertensive vascular disease and in the first note it is stated that "[f]or purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). Along these lines, the Board has considered the numerous in-service blood pressure readings in service and does not find that they disclose diastolic blood pressure predominantly 90mm. or greater, or systolic blood pressure 160mm. or greater with diastolic blood pressure less than 90mm. There are a few instances of diastolic blood pressure of 90mm and several readings of 92 mm. or above, some of which were associated with exercise. A review of the remaining diastolic blood pressure readings show diastolic pressure well below 90mm. on numerous occasions. Likewise, there are only several instances of systolic blood pressure at 160 mm. or greater than 160 and that was following a period of physical exertion. Moreover, and most saliently, the VHA physician found that the Veteran only had isolated elevations of blood pressure, but was not hypertensive. In addition, hypertension was not found upon separation examination. Thus, despite the Veteran's assertions, the Board finds that the competent and probative evidence of record shows that hypertension was not first manifested in service. Particularly probative is the opinion of the VHA physician who reviewed the medical history and provided an opinion supported by a rationale that hypertension was not incurred in service. In this regard, the Board acknowledges that the Veteran believes his current hypertension manifested and is related to service and/or his various service-connected disabilities on a secondary basis. The Federal Circuit issued Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), which stated that 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability. See also Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Moreover, the VA may not simply disregard lay evidence because it is unaccompanied by contemporaneous medical evidence. The Board does not doubt the sincerity of the Veteran's belief that his hypertension is related to service or service-connected disabilities. However, the Veteran has not claimed that he has medical training that would permit him to provide a competent opinion concerning the etiology of the condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The determinations in this case as to the diagnosis and cause of hypertension, and whether a service-connected disorder aggravates hypertension, are beyond the observations that a lay person is capable of making, and therefore, the Veteran's statements regarding etiology and aggravation are not competent evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Likewise, the Board does not conclude that service connection can be granted for the condition on a presumptive basis. A review of the available evidence fails to disclose any assessment of hypertension in the first post-service year, although that is not dispositive. However, as no blood pressure readings are available to show hypertension within the first-post service year, the claim cannot be substantiated on this basis. Moreover, the Veteran's initial diagnosis falls well outside of the applicable presumptive period. 38 C.F.R. §§ 3.307, 3.309. In this regard, the Board acknowledges that the United States Court of Appeals for the Federal Circuit recently held that where a chronic disease listed in 38 C.F.R. § 3.309(a) is shown in service (i.e. the disease identity is established and the diagnosis is not subject to legitimate question) or within the applicable presumptive period, then continuity of symptomatology is unnecessary. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Because hypertension was not manifested in service or within the first post-service year, to include by observation of blood pressure readings per 38 C.F.R. § 4.104, Diagnostic Code 7101, the claim cannot be substantiated on this basis as the evidentiary standards are not relaxed in this case. Id. Moreover, the Board acknowledges that the Walker case stands for the proposition that continuity of symptomatology can aid in the substantiation of a claim where the diagnosis of chronic disability is questionable in service or within the first post-service year. Id. However, this is not such a case as there is no question of the assessment of hypertension in service as none was made and VA examination has indicated that the Veteran's elevated blood pressure readings were isolated and attributable to acute illness and exercise. Moreover, as explained above, the evidence does not substantiate the assessment or observation of hypertension within the first post-service year. Id Otherwise, the Board does not conclude that the evidence establishes that hypertension manifested in service, or is otherwise related thereto, per the competent medical opinions of record. Repeated VA opinions have indicated that the Veteran did not have hypertension in service. Indeed, the isolated elevated readings noted in service have been attributed to acute illness and exercise, and not actual hypertension. Accordingly, the claim cannot be granted on this basis. Gilbert, supra. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, hypertension, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, even if the Veteran were competent to state he had hypertension in service based on blood pressure readings therein, and his lay assertions were determined to be credible and probative, they are still outweighed by the more probative opinion of the VA physician who reviewed the medical history and the blood pressure readings in service and determined that hypertension was not shown in service. This opinion is entitled to greater probative weight as it was based on a review of the record, including blood pressure readings in service and the circumstances of those readings, was provided by a physician, and it is supported by a rationale. Lastly, the Board notes that the Veteran has asserted that his hypertension has been caused and/or aggravated by service-connected diabetes mellitus, type II; MDD; hidradenitis suppurativa; hiatal hernia with GERD and diabetic neuropathy of the lower extremities. However, his assertions in this regard are not competent evidence. Whether hypertension is due to or has been aggravated beyond the natural progress by service-connected diabetes, diabetic neuropathy, major depressive disorder and hidradenitis suppurativa is a matter that is beyond the ability of a lay person to observe. Such determinations require medical expertise. In this regard, the VHA physician found it less likely than not that any of these conditions either caused or aggravated his hypertension. Indeed, the Veteran has been assessed as having essential hypertension. In providing the opinion, she reviewed the history and supported her opinions with a rationale. Accordingly, sufficient information was provided to allow the Board to render an informed determination. There is no competent evidence of record to the contrary. Accordingly, service connection for hypertension on a direct basis, under the presumptive provisions of 38 C.F.R. § 3.309(a), and as a secondary condition to service-connected disabilities, must be denied. Having considered the doctrine of reasonable doubt, but for the reasons just expounded, the Board finds it to be inapplicable, as the probative evidence against the claim outweighs the Veteran's unsupported assertions of service etiology. 38 C.F.R. § 3.102. ORDER Service connection for hypertension, to include as secondary to service-connected disabilities, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs