Citation Nr: 1313048 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 04-26 498 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension to include as secondary to service-connected diabetes mellitus, type 2. 2. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1967 to February 1986, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2003 of a Department of Veterans Affairs (VA) Regional Office (RO) or Agency of Original Jurisdiction (AOJ). In a decision in March 2007, the Board reopened the claim of service connection for hypertension and denied the reopened claim of service connection on the merits. The Board remanded the claim of service connection for a bilateral foot disability. The Veteran then appealed the denial of service connection for hypertension to the United States Court of Appeals for Veterans Claims (Court). In July 2008, the Court granted a Joint Motion for Partial Remand submitted by the parties (VA Secretary and the Veteran), and vacated that part of the Board's decision, denying the reopened claim of service connection for hypertension. In June 2010, the Board remanded the claim pursuant to 38 U.S.C. § 7252(a) for development and readjudication consistent with the Joint Motion. In June 2012, the Board obtained an advisory opinion from the Veterans Health Administration (VHA) on the question of whether hypertension was caused by or aggravated by the service-connected diabetes mellitus, type 2. A copy of the VHA opinion was furnished to the Veteran and his representative, who were afforded the opportunity to submit additional evidence or argument. In August 2012, the Veteran submitted additional evidence and did not waive the right to have the evidence initially considered by an Agency of Original Jurisdiction. Accordingly, in November 2012, the Board remanded the claim to allow an Agency of Original Jurisdiction to consider the additional evidence. The Veteran's representative submitted additional argument. As the requested development directed by the Board in its remands has been completed, no further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). The claim of service connection for a bilateral foot disability is REMANDED to an AOJ via the Appeals Management Center, in Washington, DC. FINDING OF FACT The current hypertension did not have onset in service and hypertension as a chronic disease was not manifest to a compensable degree within the one-year period following separation from service; hypertension is not the result of or made worse by service-connected diabetes mellitus, type 2, and hypertension is not otherwise related to an injury, disease, or event in service. CONCLUSION OF LAW The criteria for service connection for hypertension to include as due to service-connected diabetes mellitus, type 2, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters in August 2003, in January 2010, in February 2010, and in October 2010. The VCAA notice included the type of evidence needed to substantiate a claim of service connection, including secondary service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service; or evidence that a service-connected disability either caused or aggravated the claimed disability. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any non-Federal records on his behalf. The VCAA notice included the general provisions for the effective date of a claim and for the degree of disability assignable. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim). As for the timing of the VCAA notice, to the extent there was pre-adjudication VCAA notice, the timing complied with Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice, the claim of service connection was readjudicated as evidenced by the supplemental statement of the case in February 2013. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, and non-VA records. The Veteran was afforded a VA examination in 2003 to obtain an opinion on the relationship between the post-service hypertension and the elevated blood pressure readings in service. In June 2012, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA) on the question of secondary service connection. As the opinion of the VA examiner and the VHA expert's opinion are based on a review of the Veteran's history and as medical analysis was applied to the facts of the case to reach the conclusions rendered in the opinions, the opinions are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding a medical opinion is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 and 1131. Generally, to establish entitlement to VA disability compensation, a Veteran must show: (1) a present disability; (2) an 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). In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110, 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for specifically listed chronic diseases, including hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112 and 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability which is proximately due to or the result of a service-connected disability or for increased in disability caused by a service connected disability. 38 C.F.R. § 3.310(a). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). If a Veteran was in combat, VA shall accept as sufficient proof of service connection of any disease alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease. So long as the evidence is consistent with the circumstances, conditions or hardships of such service, the fact that there is no official record of such incurrence or aggravation in such service is of no consequence. 38 U.S.C.A. § 1154(b). The presumption afforded under 38 U.S.C.A. § 1154(b) deals only with the question of whether a particular disease was occurred in service, that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent evidence is required. Stated differently, evidence of a current disability and a nexus to service is still required. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts The service treatment records from the first period of service from June 1965 to December 1966 contain no evidence of elevated blood pressure or hypertension. The service treatment records from the second period of service from July 1967 to February 1986 show that in June 1981, during a random hypertension screening, the Veteran's blood pressure was 150/90 and the diagnosis was borderline hypertension (or prehypertension). The Veteran's blood pressure was then taken daily for five days in a row and he subsequently underwent an electrocardiogram (ECG) for labile hypertension (or prehypertension). The ECG was within normal limits. The Veteran was placed on a diet. In July 1981, it was reported that the Veteran's blood pressure was 118/70. It was noted that the Veteran had stopped smoking and was asymptomatic. In March 1983, the Veteran underwent an annual flight physical. The examiner noted that the Veteran had had high blood pressure for one week and was treated with diet and the Veteran stopped smoking. The examiner reported that the Veteran was currently asymptomatic and that there were no complications and no sequelae. The cardiac evaluation was normal. The blood pressure readings were 112/78, 140/72, and 112/80. In September 1985, on retirement examination, the Veteran gave a history of high blood pressure. The examiner noted that the Veteran had been diagnosed with "hypertension" and that the Veteran was now normal. The cardiac evaluation was normal. The blood pressure reading was 124/82. Hypertension was not listed as a diagnosis. After service VA records show that in May 1992, the Veteran was diagnosed with probable hypertension. It was noted that upon a chart review, the Veteran's blood pressure range was 126-160/82-100 since September 1991. In June 1993, the Veteran had a five day blood pressure check. The blood pressure readings over the five day period were 145/97, 144/93, 144/93, 144/83, and 144/91. The assessment was hypertension. In February 2000, the Veteran was treated by A.R., MD. According to Dr. R., the Veteran had brought in some copies of his service medical records and had requested a letter stating that his hypertension was service connected. Dr. R. indicated that a review of the service medical records showed one-time five day blood pressure readings which showed mild hypertension. According to Dr. R., many other readings before and after were within normal limits, and five day blood pressure readings on different occasions were in the very normal range. Dr. R. reported that he had informed the Veteran that he could not make a statement based on the aforementioned records as a one-time high reading did not qualify for being labeled as hypertension. Dr. R. stated that the Veteran may have had labile hypertension that time for various other reasons. In December 2000, history included hypertensive cardiovascular disease for about 10 years. In July 2003, the RO received an undated statement from a physician which was written on a VA Form, 10-2577F, Security Prescription Form. In the statement, the physician indicated that the Veteran's high blood pressure as likely as not started during military service. In September 2003 on VA examination, the VA examiner stated that he had reviewed the Veteran's file and the VA examiner diagnosed hypertension. The VA examiner stated that the Veteran was found to have some elevated blood pressure readings in 1981. According to the VA examiner, no diagnosis of hypertension was given. The VA examiner reported that the Veteran's retirement examination did not show hypertension and that no elevated readings were recorded in the interim period. The VA examiner expressed the opinion that it was less likely than not that the Veteran's hypertension began in military service. Subsequent VA records through November 2012 show intermittent treatment for hypertension. In a rating decision in September 2010, an AOJ granted service connection for diabetes mellitus, type 2, as presumptively incurred as a result of in-service herbicide exposure during service in the Republic of Vietnam. VA records show that in March 2006 the Veteran denied a history of diabetes mellitus. The first diagnosis of diabetes mellitus was in July 2006 by a VA cardiologist. In May 2007, it was noted that the Veteran had elevated blood glucose levels in April and May 2006. On VA examination in April 2010, history included diabetes mellitus since 2005 and a pre-diabetic condition a few years before then. In June 2012, the Board obtained an advisory medical opinion from a VHA expert, an internist. The VHA expert was asked to render an opinion on the following questions. Was hypertension caused by service-connected type 2 diabetes mellitus? If hypertension is not caused by service-connected type 2 diabetes mellitus, then was hypertension aggravated by service-connected type 2 diabetes mellitus? The VHA expert expressed the opinion that hypertension was not caused by or aggravated by service-connected type 2 diabetes mellitus. The VHA expert's discussion of the facts and rationale are addressed in the Analysis under the heading "Medical Evidence." Analysis On the question of direct service connection for hypertension, the Veteran asserts that hypertension was first treated during service. The service treatment records show that in June 1981 the Veteran had high blood pressure readings for one week and was diagnosed with borderline or labile hypertension (prehypertension). In March 1983, on an annual flight physical, examiner reported that the Veteran was asymptomatic and there were no complications of the elevated blood pressure readings. The blood pressure readings were 112/78, 140/72, and 112/80. On retirement examination, the Veteran gave a history of high blood pressure. The examiner noted that the Veteran had been diagnosed with "hypertension" and that the Veteran was now normal. The blood pressure reading was 124/82. Hypertension was not listed as a diagnosis. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days; the term hypertension means that diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90 mm.). On the basis of the service treatment records, while elevated blood pressure readings were recorded in 1981 and the diagnosis was borderline or labile hypertension (prehypertension), thereafter the Veteran was asymptomatic and there was no evidence that the blood pressure readings were predominantly elevated and no diagnosis of hypertension. As the elevated blood pressure readings were isolated findings, hypertension, that is, diastolic blood pressure readings predominantly 90 mm. or greater, or systolic blood pressure predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm., was not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. As hypertension is a chronic disease listed in 38 C.F.R. § 3.309(a), the theories of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38 C.F.R. §§ 3.303(b), 3.309(a)). For a showing of hypertension as a chronic disease in service there is required a combination of manifestations sufficient to identify the disability and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Although the elevated blood pressure readings were prehypertension, the readings were isolated findings, that is, there were normal blood pressure readings before and after the elevated blood pressure readings and hypertension was not found or diagnosed on an annual flight physical in 1983 or on retirement examination in 1985. And while the Veteran as a lay person is competent to identify a simple medical condition, one capable of lay observation, whether hypertension as opposed to borderline or labile hypertension was present in service is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation as the diagnosis of hypertension falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose hypertension. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). Where, as here, there is a question of the diagnosis of hypertension, which is not capable of lay observation, to the extent the Veteran's lay statements are offered as proof of the presence of hypertension in service the Veteran's lay statements are not competent evidence, and the Veteran's lay statements are not admissible as evidence, that is, the Veteran's lay statements are not to be considered as competent evidence that hypertension was present in service. As the service treatment records lack the documentation of the combination of manifestations sufficient to identify hypertension and insufficient observation to establish chronicity at the time on the basis of isolated findings, and as the Veteran's lay statements are not competent evidence that hypertension was present in service, chronicity of hypertension in service is not adequately supported by the evidence of record. As chronicity in service is not adequately supported by the evidence of record, service connection may still be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). Establishing service connection based on continuity of symptoms requires evidence of a nexus between the current disability and the post-service symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (continuity of symptoms requires evidence of a nexus between the current disability and the post-service symptoms, which are identical to the symptoms that began in service.) While hypertension was not shown to be present in service and the evidence is insufficient to establish chronicity during service, the Veteran is competent to describe elevated blood pressure readings since service. See 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). The Veteran asserts that his current hypertension is a continuation of the elevated blood pressure readings in service, which is an expression of a causal relationship between the current hypertension and the continuity that the Veteran avers. As the statement is an inference based on facts, it is an opinion rather than a statement of fact. The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The question is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the current hypertension and the post-service symptomatology. While the Veteran as a lay person is competent to offer an opinion on a simple medical condition, whether there is a causal relationship or nexus between the current hypertension and the post-service symptomatology is not a question that can be competently answered by the Veteran as a lay person based on mere personal observation as causation falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. Jandreau, 492 F.3d at 1377. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to render an opinion on a causal relationship or nexus between the current hypertension and the post-service symptomatology. See King, 700 F.3d at 1345 (the Board may find that lay evidence to establish medical causation is not competent evidence). For this reason, the Veteran's lay evidence is not competent evidence of a causal relationship or nexus between the current disability and the post-service symptomatology. Since the Veteran's lay evidence is not competent evidence, the Veteran's lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology. Although service connection is not established either by chronicity or by continuity of symptomatology on the basis of lay evidence under 38 C.F.R. § 3.303(b), service connection may still be established based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), when all of the evidence, including that pertinent to service, shows that the disability was incurred in service, or on a secondary basis under 38 C.F.R. § 3.310 for a disability that is caused by or aggravated by a service-connected disability. As previously explained the hypertension is not a simple medical condition, that is, one capable of lay observation and hypertension has not been found to be capable of lay observation by case law. Where, as here, there is a question of the presence or a diagnosis of a hypertension, not capable of lay observation, to the extent the Veteran's lay statements are offered as proof of the presence of the current disability in service and since service and before 1991, the Veteran's lay statements are not competent evidence, and the statements are not admissible as evidence. And the Veteran is not otherwise qualified through specialized education, training, or experience to identify the presence or diagnosis of hypertension. Except the Veteran as a lay person is competent to describe a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. No medical professional had diagnosed hypertension before 1993 with a history dating to 1991, more than five years after service separation in 1986 and beyond the one-year period for presumptive service connection for hypertension as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. But the Veteran has submitted evidence of a diagnosis by a medical professional on the basis of the symptoms the Veteran has described, which will be addressed under the heading "Medical Evidence." On the question of secondary service connection, the Veteran asserts that there is a causal relationship between hypertension and service-connected diabetes, but the question is not one that can be competently answered by the Veteran as a lay person based on mere personal observation as causation falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. Jandreau, 492 F.3d at 1377. For this reason, the Veteran's lay opinion on a causal relationship between hypertension and service-connected diabetes is not competent evidence and is not admissible as evidence favorable to claim under 38 C.F.R. § 3.310. As the Veteran's statements are not competent evidence, the Board need not address credibility. As the Veteran's lay evidence is not competent evidence on the questions of either a diagnosis of hypertension or etiology of hypertension on a direct or secondary basis, the Board looks to the medical evidence. Medical Evidence As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to chronicity, continuity, initial post-service diagnosis, and secondary service connection, applying 38 C.F.R. § 3.303(b) as appropriate (d) and 38 C.F.R. § 3.310, the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). On the question of direct service connection for hypertension, as for the Veteran describing symptoms that later support a diagnosis by a medical professional, the medical evidence consists of a medical opinion in favor of the claim by a VA physician and medical opinions against the claim by a private physician and VA examiner. The VA physician, the private physician, and the VA examiner are qualified through education, training, or experience to diagnose and to offer a medical opinion. The medical evidence in favor of the claim is the opinion of a VA physician, who expressed the opinion that the Veteran's high blood pressure as likely as not started in service. As the physician's opinion is conclusionary and not supported by a rationale, the opinion is insufficient to determine its probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (a mere conclusionary opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions). As the opinion has no probative value, the evidence is not persuasive evidence in favor of the claim on a material issue of fact, that is, whether post-service hypertension is related to the elevated blood pressure readings in service. The medical evidence against the claim consists of the opinion of a private physician and a VA examiner. After a review of the Veteran's service treatment records, including the one-time five day blood pressure readings, which showed mild hypertension, A.R., MD, stated that the Veteran had other blood pressure readings before and after that were within the normal range and that the one-time high readings did not qualify as hypertension. In September 2003 on VA examination, the VA examiner stated that he had reviewed the Veteran's file and the VA examiner diagnosed hypertension. The VA examiner stated that the Veteran was found to have some elevated blood pressure readings in 1981. According to the VA examiner, no diagnosis of hypertension was given. The VA examiner reported that the Veteran's retirement examination did not show hypertension and that no elevated readings were recorded in the interim period. The VA examiner expressed the opinion that it was less likely than not that the Veteran's hypertension began in military service. As the opinions of the private physician and the VA examiner were based on a review of the Veteran's history and provided a rationale for the conclusions reached in the opinions, the Board finds that the opinions are persuasive evidence, which opposes, rather than supports, the claim on the question of whether the post-service hypertension is related to the elevated blood pressure readings in service. On the question of secondary service connection for hypertension, that is, whether hypertension was caused by or aggravated by service-connected diabetes, no medical professional had diagnosed diabetes before 2005 and no medical professional has related hypertension to service-connected diabetes. Jandreau, 492 F.3d at 1377. The only evidence addressing secondary service connection is the opinion of the VHA expert, who expressed the opinion, that hypertension was not caused by or aggravated by service-connected diabetes mellitus. The VHA expert explained that the date diabetes was diagnosed was unclear, but as hypertension was diagnosed in the 1990s, which predated any reference to diabetes mellitus, the service-connected diabetes mellitus did not cause hypertension. On the question of aggravation, VHA expert stated that on the evidence of record hypertension was not permanently made worse by service-connected diabetes mellitus. As the opinion of the VHA expert was based on a review of the Veteran's history and provided a rationale for the conclusions reached in the opinion, the Board finds that the opinion is persuasive evidence, which opposes, rather than supports, the claim of secondary service connection, and constitutes probative, competent medical evidence against the claim of secondary service connection. On the basis of the evidence of record, the Board concludes that the preponderance of the evidence is against the claim of service connection on a direct and secondary basis. As the preponderance of the evidence is against the claim, the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for hypertension to include as secondary to service-connected diabetes mellitus, type 2, is denied. REMAND On the claim of service connection for a bilateral foot disability, in a rating decision in January 2012, an AOJ denied service connection for right and left heel spurs on grounds that the evidence was not new and material to reopen the claim. The record shows that in a decision in March 2007 the Board remanded the claim and the claim has remained in appellate status since then. Also, the service treatment records show that in June 1966 the Veteran was treated for a fungal infection of the feet. In May 1976 and on retirement examination in 1985, the Veteran gave a history of foot trouble. The pertinent finding on retirement examination was tinea pedis. After service, tinea pedis was noted in VA records in May 2008. As the evidence of record is insufficient to decide the claim further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran VA examinations to determine: a). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent) that tinea pedis noted by VA in May 2008 represents a progression of the tinea pedis listed as a diagnosis on retirement examination in service or a new and separate skin disability? b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent) that post-service left toe gouty flares in 2004, 2008, 2009, 2010, and 2011, plantar fasciitis and heel fissure in June 2008, or hallux valgus, degenerative joint disease, and calcaneal spurs by X-ray in July 2008 are related to an injury, disease, or event in service? The Veteran's file must be made available to the examiner for review. 2. After the above development has been completed, adjudicate the claims. If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs