Citation Nr: 1312841 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 05-35 872A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from September 1968 to September 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board subsequently remanded the case, most recently in September 2012, for further notification, evidentiary development, and adjudication. The Board instructed the agency of original jurisdiction (AOJ) to request that the Veteran provide information to allow VA to obtain records of his treatment from private treatment providers as well as record of a "flight physical" referenced in treatment records, provide the Veteran with a VA examination, and then re-adjudicate the claim. The AOJ sent the Veteran the required notice via October and November 2012 letters, to which he did not respond with the requested information, and scheduled the Veteran for a VA examination, which was conducted in December 2012. The Veteran was then provided a supplemental statement of the case (SSOC) in February 2013, in which the AOJ again denied the Veteran's service connection claim. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT The Veteran does not have hypertension that is related to military service; his hypertension has not been caused or made worse by service-connected diabetes mellitus. CONCLUSION OF LAW The Veteran does not have hypertension that is the result of disease or injury incurred in or aggravated during active military service, nor may hypertension be presumed to have been incurred therein; his hypertension is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.310 (2006); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through March 2005, April 2010, and October 2012 notice letters, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the March 2005, April 2010, and October 2012 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned March 2005, April 2010, and October 2012 letters. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the April 2010 and October 2012 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment records, as well as records of his post-service treatment with VA treatment providers, have been associated with the claims file. Pursuant to the Board's September 2012 remand, the AOJ sent the Veteran a letter requesting information to allow search for additional medical records; however, the Veteran did not provide the requested information to allow the AOJ to conduct such searches. Otherwise, the Veteran has not alleged that there are any outstanding medical records probative of the claim that need to be obtained. The Veteran also underwent VA examination in May 2010, October 2010, October 2011, and December 2012, reports of which are of record. To that end, 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). Here, the Board finds that the October 2010, October 2011, and December 2012 VA examinations obtained in this case are collectively adequate, as they are predicated on full physical examination as well as consideration of the medical records in the claims file and the Veteran's reported history. The examinations consider all of the pertinent evidence of record, to include statements given by the Veteran at the time of the examinations, and provide a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran and his representative have both submitted written argument, and the Veteran testified before the undersigned Veterans Law Judge at a hearing in January 2010. Otherwise, neither the Veteran nor his representative has alleged that there are any outstanding records probative of the claim on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Regarding his service connection claim, the Veteran has contended that he has hypertension secondary to his service-connected diabetes mellitus. The RO denied the Veteran's claim on the basis that the medical evidence of record weighed against a finding of a link both between his current hypertension disability and his service-connected diabetes mellitus, and between his hypertension and service. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). When hypertension is manifested to a compensable degree within a year of separation from qualifying service, it may be presumed to have been incurred in or aggravated by active military service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2006). This includes a disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-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 non-service-connected disability before an award of service connection based on aggravation may be made. This had not previously been VA's practice, which strongly suggests that the change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim for service connection for hypertension 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 version favors the claimant. Relevant medical evidence consists of the Veteran's service treatment records, as well as his post-service treatment at VA facilities and VA examinations conducted in October 2010, October 2011, and December 2012. Service treatment records reflect that, at his enlistment examination in July 1968, his heart was found to be normal, and his blood pressure was recorded as 120/84. However, at a July 1972 medical examination, the Veteran's blood pressure was recorded as 130/90. He was seen in January 1978 for a follow-up visit for treatment of a skin rash; at that time, his blood pressure was recorded as 126/90. He was again seen in November 1988 for treatment of cellulitis resulting from a bug bite; blood pressure readings at that time were 130/90. Similarly, at an undated record of a weight management visit, the Veteran's blood pressure was recorded as 136/90. However, at his June 1991 separation medical examination, the Veteran's heart was again found to be normal, with a blood pressure reading of 116/80. Post-service treatment records reflect that the Veteran was not treated for hypertension for many years after his separation from service. A review of VA treatment records reflects that he was first diagnosed with essential hypertension in April 2001 and has continued to receive treatment since that time. The Veteran was provided VA examination in May 2010, October 2010, October 2011, and December 2012. As an initial matter, the Board notes that, in the October 2010 remand, the May 2010 examination was found inadequate due to reliance on inaccurate factual premises and will thus not be considered in the adjudication of the Veteran's claim. In the report of the October 2010 examination, the VA examiner found that no physical examination of the Veteran was necessary. After reviewing the medical evidence of record, the examiner concluded that the Veteran's hypertension was not caused or aggravated by his diabetes mellitus, reasoning instead that his hypertension was most likely due to excess drinking. Similarly, the Veteran underwent VA examination in October 2011; at that time, physical examination was conducted, and the examiner diagnosed the Veteran with hypertension not likely related to his service-connected diabetes mellitus. In so finding, the examiner again pointed to the Veteran's excess drinking and also noted that his diabetes mellitus was diagnosed within two months of his diagnosis of hypertension. At the December 2012 examination, the Veteran was again diagnosed with hypertension. At that time, the VA examiner found the disorder to be not likely related to his time in active service. In so finding, the examiner acknowledged the Veteran's in-service findings of elevated blood pressure but concluded that these were isolated incidences that resolved and did not develop into a chronic hypertension disorder. The examiner further pointed out that the in-service findings never rose to the level of diagnosable hypertension, because the blood pressure readings were never confirmed or replicated, and reasoned that the more likely explanation for his current hypertension is his history of heavy drinking. Upon consideration of the above evidence, the Board first finds that the preponderance of the evidence is against the Veteran's claim of service connection for hypertension on a direct basis. The Board concedes that VA examination confirms that the Veteran currently suffers from hypertension. The Board concludes, however, that the greater weight of the evidence is against the claim. Here, the Veteran's service treatment records show several isolated elevated blood pressure readings, but his June 1991 separation medical examination revealed findings of no abnormalities, and his blood pressure was not elevated at that time. Further, the December 2012 VA examiner considered the in-service findings but nevertheless found no link between any current disability and military service. In addition, records of the Veteran's treatment from VA treatment providers reflects that he was not diagnosed with hypertension until approximately ten years after his separation from active duty. Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between the Veteran's service and his current hypertension. In that connection, the Board notes that the medical opinion submitted by the December 2012 VA examiner did not attribute the Veteran's current hypertension to his time on active duty. In so finding, the examiner considered the in-service findings of elevated blood pressure but explained that those findings did not rise to the level of diagnosable hypertension and were instead isolated incidences that resolved. The examiner further found that the Veteran's hypertension was likely due not to service but to his long history of excessive drinking. This evidence is uncontradicted by any medical evidence of record; there is simply no medical evidence in the record supporting a finding of an etiological relationship between the Veteran's time in service and his current hypertension. The Board thus finds that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension on a direct basis. The Board concedes that the Veteran has a current diagnosis of hypertension. However, there is no credible evidence indicating that his hypertension began during service or that he has experienced a continuity of symptomatology since service. Thus, in order for the Veteran's claim to be granted, the record would have to contain competent evidence of a link between the present disorder and military service. Here, there is no such evidence; indeed, as noted above, the only medical opinion of record that speaks to the relationship between any current disability and service is unfavorable. Relevant law and regulations do not provide for the grant of service connection on a direct basis in the absence of evidence linking the current disability to service. The Board is satisfied that the VA examiner's opinions are adequate for deciding this appeal. In this case, the December 2012 VA examiner's medical opinion, which is based on the entire record, including the Veteran's own history, is that the Veteran's hypertension is not at least as likely as not related to military service. Because this opinion is not controverted by any other medical evidence of record, in light of the foregoing analysis and the underlying facts, the Veteran's service connection claim for hypertension on a direct basis must be denied. As noted above, the Veteran has contended that his currently diagnosed hypertension is related to service. The Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing symptoms either in service or after service). See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). However, he is not competent to say that any such symptoms experienced in service were a result of or worsened by any incident in service or were of a chronic nature to which any current disability is attributable. Although the Veteran has contended otherwise, the evidence, viewed in its totality, does not support a finding that the Veteran first developed hypertension in service that has continued to the present. More importantly, however, the record contains no medical evidence whatsoever to show that the Veteran's current hypertension can be attributed to service. In December 2012, the VA examiner considered the entirety of the record, to include the Veteran's contentions and his service treatment records, and nevertheless opined that it was less likely than not that the Veteran's hypertension is etiologically linked to service, including to his isolated in-service findings of elevated blood pressure. None of this evidence, or any of the other competent evidence of record, in any way relates the Veteran's current hypertension to service. Absent such evidence, the claim for service connection on a direct basis must be denied. Because the question of whether a disability such as hypertension is related to another disorder such as diabetes mellitus is a medical question requiring expertise, the Board relies upon the October 2010 and October 2011 VA examiners' opinions. The examination reports reflect that the examiners comprehensively examined the Veteran's claims file and understood the medical questions asked by the originating agency. Additionally, the VA examiners offered rationales for their opinions that the Veteran's hypertension was not likely related to service-connected diabetes mellitus, relying on the medical records and their medical expertise. Specifically, the October 2010 and October 2011 VA examiner concluded that the Veteran's diagnosed hypertension is not likely linked to his service-connected diabetes mellitus or made worse thereby, but is more likely due to his history of excessive drinking. Furthermore, the Board finds persuasive the absence of medical evidence to support a finding of a nexus between the Veteran's service-connected diabetes mellitus and his hypertension. In so finding, the Board notes that both the October 2010 and October 2011 VA examiners offered negative opinions as to the possibility of an etiological link between the Veteran's hypertension and his service-connected diabetes mellitus. There is no medical evidence of record to contradict these findings. Although the Veteran has contended that he currently suffers from hypertension that is the result of his service-connected diabetes mellitus, the VA examiners' opinions find that it not likely that the disorder is related to diabetes mellitus. The examiners have offered further explanation that it is more likely that his history of heavy drinking is to blame for his current hypertension. The Board has considered the Veteran's contentions that his hypertension is etiologically related to his service, or to his service-connected diabetes mellitus. The Veteran, however, has not demonstrated that he has any medical expertise to make such an opinion or render a diagnosis for a complex etiological question such as this, which requires testing and medical expertise to diagnose and ascertain etiology. The Board notes that although the Veteran is competent to report symptoms, he does not have medical expertise and therefore cannot provide a competent opinion regarding diagnosis or causation of his claimed hypertension on a direct or a secondary basis. As a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter such as the etiology of hypertension in relation to an additional disability. See Bostain v. West, 11 Vet. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim of service connection for hypertension, that doctrine is not helpful to the Veteran in this instance. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hypertension is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs