Citation Nr: 1312979 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 08-06 781A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for type II diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Diliberto, Counsel INTRODUCTION The Veteran had active service from November 1976 to November 1980. He also served with the Army National Guard from approximately 1987 to 2003, with verified active duty from December 1990 to June 1991 and from August 1992 to July 1993. Moreover, he had other periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that denied the benefits sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. The Veteran's appeal was previously before the Board in April 2010 and September 2011. On both occasions the claim was remanded for further development. The Board notes that the requested development has been completed to the extent possible and that no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's hypertension began during or is otherwise etiologically related to any period of active service (to include active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). 2. The preponderance of the evidence is against a finding that the Veteran's type II diabetes mellitus began during or is otherwise etiologically related to any period of active service (to include active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for entitlement to service connection for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has claimed entitlement to service connection for hypertension and type 2 diabetes mellitus. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F.3d 1317 (Fed. Cir. 2005). In this case, the disorders at issue are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as diabetes and hypertension, become manifest to a degree of 10 percent of more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Under 38 C.F.R. § 3.310(a), service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation on a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). However, as discussed below, service connection is not established for either condition, and there is, thus, no legal basis for a grant of service connection for hypertension or diabetes mellitus as secondary to each other. In addition, there is no evidence or assertion that either condition is related to any other service-connected disorder. Accordingly, further discussion of secondary service connection is unnecessary. The term "active duty military service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term inactive duty for training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U.S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Thus, with respect to the Veteran's Reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of pre-existing diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation of service, are provided by law to assist veteran in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. The advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the propositions that, "if a claim relates to a period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim."). 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran first claimed entitlement to service connection for hypertension in December 1980. The RO denied entitlement to service connection for that condition in a rating decision issued in June 1981. In April 2001 the Veteran filed another claim, this time asserting entitlement to service connection or hypertension and type II diabetes mellitus. The RO denied entitlement to service connection for both conditions in a March 2002 rating decision. The Veteran did not appeal that decision and it became final. In May 2004 the Veteran filed another claim asserting entitlement to service connection for those conditions. The RO denied service connection in an October 2004 rating decision, finding that new and material evidence had not been received. The Veteran submitted a Notice of Disagreement (NOD) in October 2004. The RO issued a Statement of the Case (SOC) in February 2008 and the Veteran filed a Substantive Appeal (VA Form 9) in March 2008. The Veteran's claim first came before the Board in April 2010, at which time both issues were reopened based on the receipt of new and material evidence. The reopened claims were remanded for further development at that time and also in September 2011. The requested development has now been completed, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, those issues are properly before the Board for appellate review. The relevant evidence of record includes service personnel records, service treatment records, VA treatment records, VA examination reports and written statements from the Veteran and other individuals. The Veteran's service treatment records include records from the Veteran's period of active duty from November 1976 to November 1980 and also records from the Veteran's periods of ACDUTRA and INACDUTRA. Service treatment records from the initial period of active service are entirely negative for any findings indicating that the Veteran may have had type II diabetes mellitus. In addition, service treatment records from that time are negative for findings demonstrating hypertension or high blood pressure. Rather, service treatment records from throughout the Veteran's period of service treatment records show diastolic readings in the 60s, 70s, 80s and 90s and systolic readings in the 110s, 120s, 130s and 140s. The Veteran's November 1976 enlistment examination does show a diastolic pressure of 104, but subsequent readings during that examination showed diastolic pressure of 78, 70 and 86. The examiner did not diagnose hypertension and indicated that there was no history of high blood pressure. The Veteran's discharge examination showed a blood pressure reading of 118/60. In his December 1980 claim the Veteran stated that his hypertension began in November 1980. VA treatment records from November 1980 indicate that the Veteran was admitted for a brain scan as a result of headaches. At the time of the admission the Veteran reported having been told that his blood pressure was high. The Veteran's blood pressure was 154/98. One examiner's impressions included hypertension, but after repeated assessments a subsequent provider determined that hypertension was not established. Blood pressure on discharge was 110/64. Subsequent VA treatment records reference blood pressure readings with systolic pressure ranging from the 140s to 150s, occasionally ranging into the low 160s, and diastolic pressure ranging from the 70s to the 90s. There are no readings showing diastolic pressure predominantly 100 or more of systolic pressure predominantly 160 or more. VA treatment records from March 2001 contain a statement from a VA physician that the Veteran had diagnoses of type II diabetes mellitus and hypertension. Treatment records from the Veteran's period of National Guard duty from August 1987 indicate that the Veteran denied taking any medication. His blood pressure at that time was 140/88. Those records also include a periodic examination from February 1996 wherein the Veteran denied having high or low blood pressure. However, the Veteran did report having been treated for high blood pressure during a periodic examination in July 1998 and for diabetes and hypertension during a periodic examination in November 2001. In an April 2006 written statement the Veteran stated that he was diagnosed with hypertension in December 1980, shortly after being released from active service. In May 2006 the Veteran testified at a hearing before a Decision Review Officer (DRO). During that hearing the Veteran reported that he completed two tours in the National Guard, from December 1990 to June 1991 and from August 1990 to July 1993. He reported having been told by his doctor that his diabetes was caused by hypertension. The Veteran also stated that he has had hypertension since two weeks after being released from active service. He stated his belief that the condition actually began in service, but that it was never diagnosed. In so stating, the Veteran reported having been told that his blood pressure was high in November 1980. He indicated that he now takes three different types of medication for hypertension. He stated that he was put on medication for hypertension in 1983 or 1984. VA treatment records from May 2006 indicate that the Veteran was being treatment for hypertension and diabetes mellitus and that control of his blood pressure was very important and was linked to his diabetes. In June 2008 the Veteran was afforded a VA examination in support of his claim. During that examination the Veteran reported that his hypertension began in 1980. He stated that he was given medication for hypertension after being discharged from the hospital in 1980, but that he was taken off of the medication after one week because his blood pressure was too low. He stated that he restarted medication for his blood pressure in 1990 and has continued to take medication for that condition since. With regard to his diabetes, the Veteran reported that it began in 2001. In May 2010 a VA examination was accomplished for the purpose of obtaining medical opinions. During the examination the Veteran reported having had elevated blood pressure readings during active duty service and that he was hospitalized by VA in 1980 for high blood pressure. The Veteran also reported having been treated for hypertension in either 1983 or 1984, but that he was taken off medication until he was activated in 1992. He reported that he did not received treatment after that time until 1999, but that he has been regulated treated since then. The examiner conducted an exhaustive review of the claims file, recording blood pressure readings dating back to 1976. He found that there was no evidence of treatment for hypertension prior to March 2000, at which time the Veteran was prescribed hydrochlorothiazide by VA providers. The examiner also noted that the December 1980 hospitalization was for migraines, and not for hypertension. The examiner concluded that the Veteran does have a current diagnosis of essential hypertension. He found that essential hypertension began in 1999. In so finding, the examiner noted that there were discrete isolated blood pressure elevations documented in 1976, 1977 and 1979, with resting blood pressure readings within normal limits. He observed that there was no evidence of sustained recurring elevated blood pressure readings or hypertension prior to 1999. After so finding, the examiner concluded that the Veteran's hypertension is not related to the Veteran's periods of active service. In his rationale, the examiner stated that elevated readings during service were most likely secondary to acute stress or illness and did not represent the onset of chronic hypertension. Specifically referencing the hospitalization in December 1980, the examiner found that elevated blood pressure readings at that time were secondary to the Veteran's severe migraine headaches, and that the Veteran's blood pressures improved as his headaches were successfully treated. With regard to diabetes mellitus, the examiner noted that it was not related to any of the Veteran's periods of active service. The examiner also stated that the Veteran's diabetes did not have its onset in July 1993. In so finding, the examiner noted that there was no evidence of recurring elevated glucose readings prior to 1998, no evidence of glucose readings of 126 or higher prior to 2001 and no evidence of treatment for a diagnosis of diabetes prior to 2001. Finally, the examiner stated that the Veteran's diabetes was not permanently aggravated by his hypertension. In so finding, the examiner noted that the medical literature does not indicate that hypertension is a risk factor for the development or worsening of diabetes, but that diabetes is actually considered a risk factor for the development and worsening of hypertension. In October 2010 the Veteran was afforded an additional VA examination. Therein, the examiner found that the Veteran had a current diagnosis of hypertension, with onset in 1999. He concluded that the Veteran's hypertension was not related to the his period of active service and that infrequent isolated blood pressure elevations noted in service treatment records and VA records from 1980 were associated with episodic illnesses, headaches or injuries, and did not support a diagnosis of chronic essential hypertension. In so finding, the examiner noted that interim blood pressure readings were normal. The examiner also found that there was no evidence of elevated blood sugars prior to 1998 and that none of the Veteran's blood sugars met the criteria for a diagnosis of diabetes mellitus until 2001. Following the Board's September 2011 remand, the RO/AMC obtained a detailed list of actual dates of ACDUTRA and INACDUTRA for the Veteran's service with the Louisiana Army National Guard from 1987 to 2003. Of particular relevant, the Board notes that the Veteran was on ACDUTRA from June 7, 2001 to June 14, 2001, and from August 5, 2001, to August 11, 2001. After a thorough review of the entirety of the evidence of record the Board finds that service connection for hypertension and type II diabetes mellitus is not warranted. While the Veteran has been diagnosed with both conditions, and both conditions are chronic diseases under 38 C.F.R. § 3.309(a), there is a preponderance of evidence against a finding that either condition began during service or during the presumptive period. Specifically, the Board observes that intermittent elevated blood pressure readings are not diagnostic of hypertension in the absence of other findings and that two separate VA examiners have found that the Veteran's hypertension and diabetes did not begin until many years after his initial period of active duty, and most certainly did not begin during service or during the presumptive period after service. With regard to the Veteran's periods of ACDUTRA or INACDUTRA, the Board observes that records do not show that hypertension or type II diabetes mellitus began or were diagnosed during those time periods. Rather, it is VA treatment records which first show treatment for the Veteran's hypertension and diabetes. As noted above, with respect to periods of ACDUTRA service, there must be some evidence that the Veteran became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. There is no indication that the Veteran was in a period of ACDUTRA when his hypertension and diabetes first began. In sum, there is a preponderance of evidence against a finding that the Veteran's hypertension and diabetes are etiologically related to his periods of active service or to his periods of ACDUTRA. In so finding, the Board notes that the VA examination reports indicate that those are not related to any injury or event that occurred in service. This is highly probative evidence against the Veteran's claim. In contrast, the only evidence supporting an etiological relationship is the Veteran's own statements. The Veteran is competent to testify as to the events he experienced in service, including having been told that he had high blood pressure readings. He is also considered competent to testify as to his in-service and post-service symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, individuals without training are not competent to provide evidence as to more complex medical questions. The Veteran is not shown to have medical training and expertise, and so cannot provide a competent opinion on a matter as complex as the date that that his hypertension began or a relationship between high blood pressure readings in service and his current hypertension and diabetes. Even according the Veteran's assertions as to etiology some probative value, they are outweighed by the objective medical evidence indicating that his hypertension and diabetes are not related to his period of active service, any event or incident therein or any period of ACDUTRA. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA. 38 U.S.C.A. § 5107(a), and the Veteran was clearly advised of the need to submit medical evidence of the existence of the disabilities claimed and a relationship between those disabilities and his periods of service. The Board has considered application of the benefit-of-the doubt doctrine under 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. The most persuasive and probative evidence of record fails to demonstrate that the claimed conditions are related to the Veteran's period of active service. In sum, the Board finds that there is a preponderance of evidence against a grant of service connection for hypertension and diabetes. As there is a preponderance of evidence against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Board finds that service connection is not warranted. Duty to Notify and Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was met by way of a letter from the RO to the Veteran dated in April 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and has not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded VA examinations on the issues under review during the course of his appeal. The report from those examinations reflect that the examiners reviewed the Veteran's medical records, recorded his current complaints, conducted appropriate physical examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for type II diabetes mellitus is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs