Citation Nr: 1312862 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 08-26 483 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for hypertension to include as secondary to or aggravated by a service-connected disability. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970 and again from September 1970 to April 1972. This case comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision. The Board notes that the August 2008 statement of the case (SOC) also included the issue of entitlement to service connection for peripheral neuropathy of the upper and lower extremities as secondary to service-connected diabetes mellitus, type 2, with retinopathy. However, the Veteran was granted service connection for peripheral neuropathy of the bilateral upper and lower extremities in an October 2011 rating decision. This decision was a complete grant of benefits with respect to these issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, these issues are not currently on appeal before the Board. The Veteran indicated on his August 2008 VA Form 9 that he wished to testify at a Board hearing. In August 2010 correspondence, he withdrew the hearing request. This issue was remanded by the Board for further development in November 2012. As the development has been completed, this issue is now returned to the Board for review. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In November 2010 correspondence, the Veteran raised the issues of entitlement to service connection for kidney damage, hearing loss, tinnitus, and posttraumatic stress disorder (PTSD)/anxiety disorder. These issues were deferred by the RO in an August 2011 rating decision and referred by the Board in the November 2012 remand. The RO has not yet adjudicated these issues. As such, the issues of entitlement to service connection for kidney damage, hearing loss, tinnitus, and PTSD/anxiety have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT Hypertension was not shown in service, was not demonstrated to a compensable degree within one year of discharge from active duty, and the competent medical evidence of record does not show hypertension to be etiologically related to a disease, injury, or event in service, to include a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active military service, may not be presumed to have been incurred in service, and is not proximately due to or the result of any service-connected disability. See 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. A VCAA letter dated in November 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the Board notes that an August 2011 VCAA letter notified the Veteran as to how appropriate disability ratings and effective dates are assigned and as to how service connection is established on a direct basis. While this letter was not sent specifically in regard to the Veteran's hypertension claim and was not a preadjudicative letter, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. All records identified by the Veteran as relating to these claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claim, and VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided VA medical examinations or VA medical opinions with regard to his hypertension claim in November 2007, May 2008, and November 2010, and February 2013. The examiners reviewed the claims files, conducted the appropriate tests and studies, and noted the Veteran's assertions. As such, the Board finds these examination reports and opinions to be thorough, complete, and sufficient upon which to base a decision with regard to these claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all 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. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; 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) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, 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) (2012). 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). For any disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2012). Any increase in severity of a nonservice-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 nonservice-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. 38 C.F.R. § 3.310(b) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain diseases, to include hypertension, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran contends that his hypertension is secondary to and/or aggravated by his service-connected diabetes mellitus. Hypertension means persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90. Dorland's Illustrated Medical Dictionary at 889 (30th ed. 2003). For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). A review of the service treatment records reveals no complaints, treatment, or diagnoses of hypertension or high blood pressure. With regard to the post-service evidence, the claims file shows that the Veteran first began experiencing chest pain in January 1994 and was diagnosed with coronary artery disease. It appears that the Veteran was also diagnosed with hypertension around the same time. Significantly, a May 2008 VA examination report shows that the Veteran's hypertension was diagnosed in the mid-1990s. A July 1996 private treatment record shows a new onset of diabetes mellitus. The Veteran has been afforded several VA examinations in this case, and, in VA examinations reports dated in November 2007, May 2008, and November 2010, the examiners opined that the Veteran's hypertension is not related to his service-connected diabetes mellitus on a secondary or aggravation basis. Specifically, these examiners note that the Veteran's hypertension pre-dated his diabetes and has remained stable on the same level/type of medical management indicating a lack of aggravation of this disorder. The Board notes that the November 2007 VA examination report noted a diagnosis of essential hypertension and indicated that there is nothing in the literature to indicate that diabetes causes hypertension. They are often seen in the same patient and related to obesity and metabolic syndrome. The May 2008 VA examination report noted that literature does not support that diabetes mellitus, type II causes hypertension and the only relationship of hypertension supported by literature is with diabetes mellitus type I associated with renal failure. Renal function in the Veteran continued to be normal and he has type II diabetes mellitus. During the pendency of this appeal, the Veteran was awarded service connection for coronary artery disease associated with herbicide exposure. In the November 2010 VA diabetes examination, the examiner noted that the Veteran's coronary artery disease pre-dates the onset of diabetes and "corresponds" with the onset of the hypertension. As such, this issue was remanded in November 2012 in order to obtain a medical opinion as to whether the Veteran's now service-connected coronary artery disease caused or aggravated his hypertension. As such, a VA opinion was provided in February 2013. The examiner indicated that he or she reviewed the claims file. The examiner noted that, according to Harrison's Principles of Internal Medicine, "90-95% of hypertensive patients are diagnosed as having "essential" hypertension (also referred to as primary or idiopathic hypertension). In the remaining 5-20% of patients a specific underlying disorder causing the elevation of blood pressure can be identified." Coronary artery disease is not listed as a secondary cause of systolic and diastolic hypertension. Therefore, this reference indicates that coronary artery disease does not cause or aggravate hypertension. Therefore, the examiner opined that it is unlikely that this Veteran's coronary artery disease caused or aggravated his hypertension. It is most likely that this Veteran has essential or primary hypertension. As an initial matter, the Board notes that the Veteran's in-service herbicide exposure has been conceded. On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. The Board has considered the effects of this revision to 38 U.S.C. § 1116. However, the Board notes that 38 C.F.R. § 3.309(e) was specifically amended to include a new Note 3, which indicates that, for the purposes of this section, the term ischemic heart disease does not include hypertension. Therefore, hypertension is not among the diseases considered to be presumptively associated with exposure to agent orange or herbicides and service connection cannot be awarded on that basis. With regard to establishing service connection on a presumptive basis under 38 C.F.R. § 3.309(a), the Board notes that there is no competent medical evidence of record reflecting that the Veteran demonstrated hypertension to a compensable degree within one year of discharge from active duty. As such, service connection for hypertension cannot be granted on a presumptive basis. With regard to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). The Board notes that the Veteran's available service treatment records do not reflect that the Veteran had high blood pressure or hypertension during service. The claims file contains no medical evidence linking a current diagnosis of hypertension to service, and the Veteran has never asserted that he developed hypertension during his active duty service or as a direct result of his active duty service. Therefore, service connection cannot be warranted on a direct basis. See Shedden, supra. With regard to establishing service connection on a secondary basis, the Board notes that, in VA examinations reports dated in November 2007, May 2008, and November 2010, the competent medical examiners have opined that the Veteran's hypertension is not related to his service-connected diabetes mellitus on a secondary or aggravation basis. The February 2013 VA examiner opined that it is unlikely that this Veteran's coronary artery disease caused or aggravated his hypertension. These opinions are based on a review of the Veteran's service treatment records, his medical history since service, and his other diagnosed disabilities. The examiners provide the underlying reasons for the conclusions that are made. The claims file contains no credible evidence to the contrary. Therefore, the Board finds the opinions highly probative on the issue of whether a nexus exists between the Veteran's service-connected disabilities and his hypertension. Because the opinions are against the claim, service connection cannot be established on a secondary basis. The Board has considered the Veteran's contentions that his hypertension is related to his service-connected disabilities. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran, as a lay person has not been shown to be competent to offer opinions on complex medical questions, such as whether he has a current diagnosis of hypertension that is related to diabetes mellitus or coronary artery disease. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 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). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise such that he can relate his hypertension to complex disabilities or the endocrine and cardiovascular systems. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994). Thus, his lay assertions regarding etiology are far outweighed by the medical opinions of record provided by VA examiners who had full access to the Veteran's medical history and offered rationales for their opinions. The Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit-of-the-doubt rule does not apply. The Veteran's claim of entitlement to service connection for hypertension must be denied on presumptive, direct, and secondary bases. See 38 U.S.C.A §5107 (West 2002). ORDER Entitlement to service connection for hypertension to include as secondary to or aggravated by a service-connected disability is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs