Citation Nr: 1312992 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 02-20 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for diabetes mellitus with diabetic retinopathy. ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for hypertension and diabetes mellitus with diabetic retinopathy. The Board notes that the Veteran's total active duty service was from February 1956 to September 1967. His personnel records indicate that his discharge for the period from September 1965 to September 1967 was under conditions other than honorable. In addition, an administrative decision from April 1968 indicates that his discharge in September 1967 was under dishonorable conditions. Therefore, for the purposes of establishing entitlement to service connection, the Board can only consider the period of honorable service from February 1956 to September 1965. In March 2003, the Veteran was afforded a hearing before a Decision Review Officer (DRO). A transcript of this hearing is of record. The Board denied the Veteran's claims for service connection for hypertension and diabetes mellitus with diabetic retinopathy in a March 2007 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2009 Memorandum Decision, the Court vacated the March 2007 decision as to those issues. The Board subsequently remanded the claim in compliance with the Court's remand in December 2009, and again in January 2012. These issues return to the Board for further consideration. In February 2013, the Veteran submitted additional evidence with a waiver of consideration by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. FINDINGS OF FACT 1. The most probative evidence fails to link the Veteran's hypertension to service. 2. The most probative evidence fails to link the Veteran's diabetes mellitus with diabetic retinopathy to service. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The requirements for establishing service connection for diabetes mellitus with diabetic retinopathy have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in letters dated January 2002 and March 2006, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The March 2006 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was readjudicated in October 2011 and December 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's available service treatment and personnel records, VA treatment records and examination reports, private medical records, and hearing testimony. Additionally, there is substantial compliance with the Court's August 2009 Memorandum Decision and the Board's resultant December 2009 and January 2012 remand instructions, which included requesting the Veteran's service personnel and medical records, as well as a copy of a letter that the Veteran reportedly signed in 1967 at Quantico, Virginia, releasing him from his duties and noting that he had hypertension. In response to the RO's request for those documents, the United States Marine Corps provided to VA in January 2012 the Veteran's service personnel records, and informed VA that it had previously furnished the Veteran's service treatment records, which are in the claims file. In March 2012, the RO issued a Memorandum of Unavailability of Federal Records explaining that it had reviewed the Veteran's personnel and service treatment records and determined that those records do not include a copy of a letter that the Veteran reportedly signed in 1967 at Quantico, Virginia, releasing him from his duties and noting that he had high blood pressure or hypertension; the RO thus concluded that all additional attempts to obtain such letter would be futile. The Veteran was notified of the inability to obtain such records in March 2012. The Board finds that the RO correctly followed the procedures prescribed in 38 C.F.R. § 3.159(c) in regard to requests for records in the custody of a Federal department or agency. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Furthermore, the September 2012 VA medical opinions are adequate because the VA examiner, a physician, explicitly considered the Veteran's claims file, provided a detailed description of the Veteran's hypertension and diabetes mellitus, and included a comprehensive rationale for his medical opinions, as discussed in detail below. A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one," Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has been afforded a hearing before a DRO in which he and his wife presented oral argument in support of his claims for service connection for hypertension and diabetes mellitus with diabetic neuropathy. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who chairs a hearing fulfill fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO asked specific questions directed at identifying the factors for establishing service connection. Moreover, the Veteran and his wife volunteered his treatment history and symptoms since service. Finally, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO hearing. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the Board has considered and complied with applicable VCAA provisions. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). For chronic diseases listed in 38 C.F.R. § 3.309, evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as hypertension or diabetes mellitus, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. However, this presumption is inapplicable in this case because the Veteran was not diagnosed with hypertension or diabetes mellitus to a degree of 10 percent within one year from the September 1965 date of termination of service. Although the Veteran testified at his DRO hearing that he was first diagnosed with hypertension and diabetes in July 1968 (by a physician whose records are no longer available), his service personnel records indicate that his discharge for the period from September 1965 to September 1967 was under conditions other than honorable. Because the Board can only consider the period of honorable service from February 1956 to September 1965 for the purposes of determining entitlement to service connection, the Veteran's reported July 1968 diagnoses of hypertension and diabetes mellitus does not qualify as falling within the one-year presumptive period, so service connection for hypertension and diabetes mellitus on a presumptive basis is not warranted. 38 C.F.R. §§ 3.4, 3.12, 3.307, 3.309. Hypertension The Veteran essentially contends on appeal that he is entitled to service connection for hypertension. At his DRO hearing, the Veteran asserted that his stress, diet, and other risk factors in service caused him to have symptoms of hypertension in service by 1965. The Veteran testified that he had "[s]ymptoms of high blood pressure which, during the time that I felt that it was service connected was back in 1965. And during that time they didn't know [what] high blood pressure or hypertension was." The Veteran's wife also attributed his hypertension to his in-service stress. The Veteran further reported that he was first diagnosed with hypertension in July 1968 by a private physician whose records are no longer available. By contrast, in his November 2002 substantive appeal, the Veteran asserted that "I was diagnosed with...hypertension while in the military at Quantico, VA and Cherry Point, NC. It appears that this information is missing from my service medical records." Similarly, in an April 2012 VA Form 21-4138 the Veteran asserted that he was "asked if I would like to wait until the next day [for a separation examination] because my blood pressure was very high. The many times requesting [sic] a copy of the letter I have been told there was a fire at the Medical Record Department." In December 2012, the Veteran asserted that he was asked "to sign papers releasing me [from service] due to illness under the conditions [that] I would not sue." The Veteran sent an accompanying news article showing that a Cherry Point, NC, headquarters building was gutted by a fire on September 8, 2007. Upon review of the record, the Board finds that the evidence does not support an award of service connection for hypertension. The Board acknowledges that the Veteran has a current diagnosis of hypertension during the pendency of the claim-in this case, in or after September 2000. Specifically, the September 2012 VA examiner diagnosed the Veteran with hypertension, and the Veteran's VA treatment records also show that he has been diagnosed with hypertension, including in October 2004. McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). However, the competent and credible evidence does not show in-service incurrence or aggravation of a disease or injury and a nexus between an in-service injury or disease and the current disability. Specifically, service treatment records contain no evidence that the Veteran had elevated blood pressure readings or was diagnosed with hypertension. In fact, during service his blood pressure readings ranged from 108/64 to 120/80. The report of examination for discharge in August 1965 shows that the Veteran's vascular system was found to be normal. His blood pressure at that time was 114/74. Moreover, although occurring during his other than honorable service, his March 1967 and August 1967 examinations likewise revealed normal clinical findings and blood pressure readings within normal limits. A Report of Medical History from March 1967 revealed the Veteran's denial of having high or low blood pressure. Additionally, there is no post-service medical evidence of hypertension until many years after the Veteran's discharge from service. In this regard, the Board notes that although the Veteran was noted to have high blood pressure during a May 1975 visit to the emergency room, he was not diagnosed with hypertension at that time. Moreover, the most probative evidence fails to link the Veteran's current hypertension to service. In this regard, in September 2012, a VA physician examined the Veteran and opined that his hypertension is less likely than not related to military service. The examiner explained that the Veteran's blood pressure readings in service-including at his August 1959 reenlistment physical, August 1965 physical, and August 1967 physical-were not persistently elevated, and that he was also not diagnosed with hypertension in service. The Board finds this opinion to warrant great probative weight. The opinion was based on a review of the claims file and provided a rationale supported by the citations to the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). By contrast, the Board finds that the Veteran's-and his spouse's-own opinions linking his current hypertension to his in-service stress, diet, and other risks factors, and suggesting that he had symptoms of hypertension in service, are outweighed by the September 2012 VA examining physician's opinion to the contrary. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The Board finds that the September 2012 VA examining physician's opinion warrants greater probative value based on its reasoning and reference to the objective data in the contemporaneous service treatment records, as well as the physician's greater medical knowledge, experience, and expertise. While the Veteran and his wife are competent to testify as to events they experienced or witnessed, as lay persons, they have not shown that they have specialized training sufficient to render an opinion as to whether symptoms reportedly experienced in service were due to hypertension or to determine the etiology of the Veteran's current hypertension. In this regard, diagnosing hypertension requires medical testing and determining the etiology of hypertension requires medical expertise. Thus, the Veteran's and his wife's opinions as to the presence of hypertension in service and the etiology of his current hypertension are not competent medical opinions. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the service treatment records and the opinion of the VA examiner to be significantly more probative on the questions at hand than the lay opinions of the Veteran and his wife. Moreover, the Board finds that the Veteran's assertion of an in-service diagnosis of hypertension is not credible because he expressly contradicted this report on multiple occasions, including in his DRO hearing testimony when he stated that in 1965 in-service clinicians did not know what high blood pressure or hypertension was. He also testified that he was first diagnosed with hypertension in July 1968 (after service) by a private physician whose records are no longer available. Likewise, the Veteran told the September 2012 VA examining physician that he was first diagnosed with hypertension in the 1970's. Interestingly, on his original claim, he noted the onset date of the claimed disabilities as being 1991. As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the internal inconsistency of the Veteran's assertions renders non-credible his assertion that he was diagnosed with hypertension in service. Similarly, the Board finds that the Veteran's allegations of delaying in-service examinations to avoid findings of very high blood pressure, of getting released from service in exchange for agreeing not to sue, and of having continuous hypertension since service all lack credibility because they are facially implausible or contradicted by the Veteran's statements to the contrary. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). In sum, the Board finds that the most probative evidence fails to link the Veteran's current hypertension to service. Accordingly, service connection for hypertension is not warranted. In reaching the conclusion above, 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, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Diabetes Mellitus with Diabetic Retinopathy The Veteran essentially contends on appeal that he is entitled to service connection for diabetes mellitus with diabetic retinopathy. At his DRO hearing, the Veteran asserted that he experienced symptoms of diabetes in service, including feeling very tired. The Veteran further reported that he was first diagnosed with diabetes in July 1968 by a private physician whose records are no longer available. The Board has also considered the Veteran's wife's statement at the DRO hearing that the Veteran's diabetes was discovered in service in 1965. However, she subsequently clarified that the Veteran's family history of diabetes-not his own diagnosis of diabetes-was recorded in service in 1965. In his November 2002 substantive appeal, the Veteran asserted that "I was diagnosed with diabetes...while in the military at Quantico, VA and Cherry Point, NC. It appears that this information is missing from my service medical records." In December 2012, the Veteran asserted that he was asked "to sign papers releasing me [from service] due to illness under the conditions [that] I would not sue." The Veteran sent an accompanying news article showing that a Cherry Point, NC, headquarters building was gutted by a fire on September 8, 2007. The Board finds that the evidence does not support an award of service connection for diabetes mellitus with diabetic retinopathy. The Board acknowledges that the Veteran has a current diagnosis of diabetes mellitus with diabetic retinopathy during the pendency of the claim-in this case, in or after September 2000. Specifically, the September 2012 VA examiner diagnosed the Veteran with diabetes mellitus, and the Veteran's VA treatment records also show that he has been diagnosed with diabetes mellitus, including in October 2004. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, the evidence does not show in-service incurrence or aggravation of a disease or injury and a nexus between an in-service injury or disease and the current disability. Specifically, service treatment records contain no evidence of treatment or a diagnosis of diabetes. Although the Veteran noted on his February 1956 and August 1959 Reports of Medical History that he had eye trouble, foot trouble, and had experienced recent weight loss, no significant abnormalities and no diagnoses were made. The 1959 examiner attributed the Veteran's weight loss to his working late hours. The clinical examinations in February 1956, August 1959, August 1965, March 1967 and September 1967, all revealed no sugar or albumin in the urine and noted a normal endocrine system. The Veteran denied having sugar or albumin in the urine in the corresponding Reports of Medical History. Moreover, the evidence does not reflect a post service diagnosis of diabetes for many years after discharge from service. In this regard, a 1979 history and physical for an ear, nose and throat examination showed no history or diagnosis of diabetes mellitus at that time. A private treatment physician noted in 2000 that the Veteran has been his patient since 1992 and that his diagnoses include diabetes. Additionally, the most probative evidence fails to link the Veteran's current diabetes to service. In September 2012, a VA physician examined the Veteran and opined that his diabetes mellitus is less likely than not related to military service. The examiner explained that the Veteran's blood sugar readings in service-including at his August 1959 reenlistment physical, August 1965 physical, and August 1967 physical-were not persistently elevated, and that he was also not diagnosed with diabetes mellitus in service. The VA examiner further opined in September 2012 that the Veteran's proliferative diabetic retinopathy began in approximately 2003. The Board finds that the September 2012 VA examiner's opinion is entitled to the highest probative value because he explicitly considered the evidence in the Veteran's claims file, discussed his medical history in detail in the report, and interviewed the Veteran; provided unequivocal conclusions; and provided a clear rationale that is consistent with the record. See Nieves-Rodriguez, 22 Vet. App. 295. By contrast, the Board finds that the Veteran's own opinions or those of his wife linking his current diabetes mellitus with diabetic retinopathy to his service, and suggesting that his in-service fatigue was a symptom of diabetes, are outweighed by the September 2012 VA examining physician's opinion to the contrary. While the Veteran and his wife are competent to testify as to events they experienced or witnessed, as lay persons, they have not shown that they have specialized training sufficient to render an opinion as to whether symptoms reportedly experienced in service were due to diabetes or to determine the etiology of the Veteran's current diabetes. In this regard, diagnosing diabetes requires medical testing and determining the etiology of diabetes requires medical expertise. Thus, the Veteran's and his wife's opinions as to the presence of diabetes in service and the etiology of his current diabetes are not competent medical opinions. See Jandreau, 492 F.3d at 376-77. The Board finds the service treatment records and the opinion of the VA examiner to be significantly more probative on the questions at hand than the lay opinions of the Veteran and his wife. Moreover, the Board finds that the assertions of the Veteran being diagnosed with diabetes in service are not credible as he expressly contradicted this report in his DRO hearing testimony when he stated that he was first diagnosed with diabetes in July 1968 (after service) by a private physician whose records are no longer available. Additionally, on his original claim, he noted the onset date of the claimed disabilities as being 1991. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Similarly, the Board finds that the Veteran's allegations of getting released from service in exchange for agreeing not to sue and of having continuous diabetes since service lack credibility because they are facially implausible or contradicted by the Veteran's statements to the contrary. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). In sum, the Board finds that the most probative evidence fails to link the Veteran's current diabetes mellitus with diabetic retinopathy to service. Accordingly, service connection for diabetes mellitus with diabetic retinopathy is not warranted. In reaching the conclusion above, 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, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for hypertension is denied. Service connection for diabetes mellitus with diabetic retinopathy is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs