Citation Nr: 1313410 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 03-00 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus (diabetes). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from April 1957 to April 1959 and June 1959 to October 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board previously remanded for additional development and due process concerns. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). A hearing before the undersigned was held at the RO in June 2010. The hearing transcript has been associated with the claims file. FINDING OF FACT The Veteran hypertension was not incurred in service, is not causally related to service, and is not secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection of hypertension have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may be granted for chronic disorders, such as hypertension, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted when a disability "is proximately due to or the result of a service-connected disease or injury." In addition, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. Hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters (mm.) or greater, or systolic blood pressure that is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, DC 7101(Note 1). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The service treatment records reflect no findings or histories suggestive of hypertension, to include elevated blood pressure readings. July 1990 and February 1991 private medical records reflect negative histories as to diabetes or hypertension, and a September 1996 private treatment record reflects the Veteran's negative history as to any chronic medical condition. See BMC treatment records. A March 1996 private treatment record indicates that the Veteran had elevated non-fasting blood sugar levels. No diagnosis was rendered. See Keith treatment record. December 1998 private treatment records reflect a finding that the Veteran "could have occult diabetes." The associated record notes that the Veteran's blood sugar was elevated at 169, but he had not completely fasted. The records further reflect a negative history as to hypertension. A January 1999 private treatment record indicates that the Veteran's blood sugar was 134. He was assessed with borderline diabetes. March 1999 private treatment records reflect conflicting histories as to hypertension: one record reflects a history of borderline hypertension and the other reflects a negative history as to hypertension. A May 1999 private treatment record reflects diagnoses of hypertension and mild diabetes mellitus. A January 2001 private treatment record reflects a finding of glucosuria and a blood sugar of 250. The record indicates that the Veteran "clearly" had type 2 diabetes, for which he was provided medication. See Rich treatment records. The record includes statements from private medical professionals reflecting their opinions that the Veteran's diabetes contributed to his hypertension. See March 2009 Khan statement; June 2010 and May 2011 GCMC statements. The record also includes opinions from VA medical professionals. A February 2010 VA examiner opined that the Veteran's hypertension was not caused by or the result of diabetes because of "documentation of onset of hypertension prior to diabetes as well as normal renal function." A December 2010 VA examiner opined that it was not at least as likely as not that the hypertension was due to or aggravated by diabetes. The examiner explained that the "medical knowledge to determine the natural progression of arterial hypertension in an individual does not exist; as such there is no evidence to support worsening beyond natural progression." A March 2011 VA physician opined that the Veteran's hypertension was not caused by or related to diabetes. The examiner explained that the hypertension preceded the onset of the diabetes by six months, and there was no objective evidence of diabetic nephropathy-induced hypertension. The examiner further opined that it was not at least as likely as not that hypertension was aggravated by diabetes because there was no objective evidence to support hypertension aggravation beyond natural progression. An August 2011 VA examiner opined that it was not at least as likely as not that the hypertension was due to diabetes. The examiner explained that the hypertension diagnosis preceded the diabetes diagnosis: the examiner indicated that hypertension was diagnosed in 2000 and diabetes was diagnosed in 2001. The examiner further opined that it was not at least as likely as not that hypertension was aggravated by diabetes because there was no objective evidence to support a worsening beyond natural progression. Finally, the examiner opined that the hypertension was not related to service because the service treatment records were silent regarding the problem of hypertension. An October 2012 VA examiner opined that it was less likely than not that the hypertension was caused by or related to service because the service treatment records were silent for hypertension. The examiner further opined that it was less likely as not that the hypertension was caused by diabetes because the onset of hypertension preceded the diagnosis of diabetes. The examiner explained that although the record showed findings of mild or borderline diabetes in 1999 (and possible occult diabetes in 1998), the glucose and A1c results did not meet the criteria for a diagnosis of diabetes until 2012. The examiner further opined that it was less likely as not that the hypertension was aggravated by diabetes because the medical knowledge to determine the course of natural progression of hypertension did not exist. The examiner reported that it was unclear what the private opinions were based on. Service connection is not warranted for hypertension. Initially, the Board notes that the competent and probative evidence does not suggest that hypertension had its onset in service or is causally related to service. The service treatment and examination records reflect no histories or findings suggestive of hypertension, and the first evidence suggestive of hypertension dates many years after separation from service. See Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). Additionally, although competent to do so, the Veteran has not reported being assessed with hypertension or elevated blood pressure readings during service. Furthermore, the record does not contain any competent evidence linking the Veteran's hypertension to service, though it does include VA examiners' probative opinions that the hypertension did not onset in service and is not related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The competent and probative evidence also does not suggest that the hypertension is secondary to a service-connected disability. The Board acknowledges that medical professionals have opined that the Veteran's diabetes "contributed" to the Veteran's hypertension. The medical professionals do not provide any explanation for how they came to these determinations, however, and the treatment records associated with the medical professionals do not otherwise provide a rationale for these findings. As such, the Board finds the opinions lack probative value and are not possible bases for the award of service connection. See Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran has alleged that there is a causative link between his diabetes and his hypertension and has submitted an article indicating that diabetes increases the risk for developing high blood pressure. The Board acknowledges that diabetes can cause hypertension. However, the probative evidence does not show that diabetes caused the Veteran's hypertension. There are no probative medical findings of such a link, and the Veteran has not shown that he is competent to render an opinion as to the cause of his hypertension: the record does not suggest that he has the specialized knowledge necessary to offer such an opinion. See Jandreau, 492 F.3d at 1376-77; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In contrast VA examiners have provided competent opinions that the hypertension was not caused by diabetes, to include because there is no evidence of nephropathy as would be expected if the Veteran had diabetes-induced hypertension. The Board finds the VA examiners' opinions are highly probative because they are supported by a detailed explanation as to why there is no causative link, to include how it was determined that the hypertension preceded the diabetes. The Veteran has alternately alleged that his hypertension is aggravated by his diabetes. He testified that he had "problems with [his blood pressure] going high" after being diagnosed with diabetes, which resulted in an increase in medication. See June 2010 hearing transcript. The treatment records predominantly reflect findings of stable or "well-controlled" hypertension; they contain no finding of uncontrolled or exacerbated hypertension due to diabetes. Although the Veteran is competent to report his symptomatic history, to include a history of elevated blood pressure readings, he is not competent to attribute any change in medication levels to his diabetes: that is a determination that requires specialized medical knowledge. See Jandreau, 492 F.3d at 1376-77; Davidson, 581 F.3d at 1316. The record does not contain any probative medical findings indicating aggravation, though it does include VA examiners' findings that there is no aggravation, in part because there is no accepted baseline to determine delineation from the normal progression of hypertension. Furthermore, the medical evidence does not otherwise suggest aggravation: the treatment records do not indicate that the Veteran's hypertension is exacerbated during periods of uncontrolled diabetes or exacerbations of diabetic symptoms. In the absence of such findings or a probative opinion, the Board finds the evidence does not suggest that the Veteran's hypertension has been aggravated by his diabetes. In the absence of probative evidence of a link to service (either through date of onset or causation) or a link to the service-connected diabetes (either through causation or aggravation), service connection is not warranted; the Veteran's claim is therefore denied. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letter dated in February 2009. The Board acknowledges that the letter did not provide notice as to how to establish secondary service-connection. The April 2011 Supplemental Statement of the Case (SSOC) provided notice of the regulatory provisions governing secondary service connection, however, and the April 2011 and June 2012 SSOCs explained the reasons for the denial of service connection on a secondary basis, and the claim was subsequently readjudicated. Mayfield, 444 F.3d at 1333. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate the claim, and as such, that he had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Furthermore, VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant examinations, obtained probative medical opinions, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file, the Veteran has been notified of the absence of any reported record, and the appellant has not contended that there are outstanding, available records. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decision: a VA examiner answered each posed question with adequate rationale. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs