Citation Nr: 1314550 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 07-32 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus and/or coronary artery disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to October 1969. This matter initially came before the Board of Veterans' Appeals (Board) from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO denied entitlement to service connection for hypertension. Jurisdiction over this case was subsequently transferred to the VARO in Huntington, West Virginia, and that office forwarded the appeal to the Board. In December 2010, the Board granted entitlement to service connection for coronary artery disease and remanded the claim for entitlement to service connection for hypertension. In May and October 2012, the Board remanded the claim to the RO, via the Appeals Management Center (AMC). For the reasons stated below, the RO/AMC substantially complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Hypertension was neither manifested in service, nor to a compensably disabling degree within the one year following discharge from active duty, nor is it otherwise shown to be related to service. 2. Hypertension was not caused or aggravated by service connected diabetes or coronary artery disease. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. Hypertension is not proximately due to, the result of, or aggravated by service connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2005 and March 2006 of the information and evidence needed to substantiate and complete a claim (including on a secondary basis), to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in February 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Veteran's representative indicated in the March 2012 informal hearing presentation that remand was required to obtain VA treatment records, however, as noted by the Board in its May 2012 remand, the Virtual VA claims file contains VA treatment records through December 2011. There is no indication that there are any outstanding VA or private treatment records with pertinent information relating to the etiology of the Veteran's hypertension. In addition, as explained below, the Board has remanded the claim multiple times for clarifications of the only medical opinion that has been offered as to the etiology of the Veteran's hypertension, and the most recent, December 2012 is adequate. The Board therefore finds that the RO/AMC substantially complied with the Board's remand instructions. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). The Board will therefore proceed to the merits of the appeal. Analysis The Veteran has been granted entitlement to service connection for diabetes and coronary artery disease. His primary argument is that hypertension is caused or aggravated by one or both of these service connected diseases. While service connection is warranted where current disability resulted from an injury or disease incurred in or aggravated by active military service, 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a), service connection is also warranted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). This latter provision was added as part of an amendment intended conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would concede aggravation. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). As the new regulation, which took effect on October 10, 2006, after the Veteran filed his July 2005 claim, is more restrictive, the former regulation is applicable. In any event, the evidence preponderates against finding that a service connected disorder aggravated hypertension. The Veteran has been diagnosed with hypertension since filing his claim and has therefore met the current disability requirement. In April 2006, a VA examiner, who did not review the claims file, concluded that the Veteran's hypertension was not caused by his diabetes. This opinion was inadequate because the examiner did not explain the rationale for his opinion, did not address the role, if any, played by coronary artery disease (for which service connection had not yet been granted), and did not address aggravation. In March 2011, a different VA examiner, after reviewing the claims file, concluded that hypertension was not caused by diabetes or coronary artery disease, because hypertension had been diagnosed prior to the diagnoses of diabetes and coronary artery disease. In May 2012, the Board found this examination inadequate because the examiner did not address aggravation and remanded the claim for a clarifying opinion. In June 2012, the examiner again reviewed the claims file and concluded that hypertension was neither caused nor aggravated by diabetes or coronary artery disease. She noted that the Veteran had disagreed with dates of diagnoses of hypertension she had referenced in her prior opinion. The examiner stated that the dates used were from the histories the Veteran provided in the VA treatment records. She reported reviewing the blood pressure readings and other information from the VA treatment records beginning in 2003, which is the date of the earliest treatment notes in the evidence of record. She also noted fluctuating blood pressure readings, as well as the implanting of a pacemaker in 2003, and a stent in 2006. She also noted the diagnosis of diabetes in 1998 as indicated in June 2005 treatment notes, medications taken, borderline renal dysfunction, and the fact that medication adjustments were no more than would be expected with a normal progression of hypertension. She indicated that all of these considerations led her to conclude that hypertension was not caused or permanently aggravated by diabetes or coronary artery disease. In its October 2012 remand, the Board found the examiner's reasoning unclear and instructed that clarification be obtained after a review of the claims file. The examiner was to provide a rationale for the opinions expressed. In December 2012 the VA examiner indicated she reviewed the claims file including remands and prior opinions. She specified the precise records reviewed. She noted the request for reasoning and wrote that she had previously stated that there was a lack of evidence showing causation or aggravation by coronary artery disease, diabetes, and/or residuals of implanted pacemaker. She again noted that hypertension preexisted diabetes and coronary artery disease, with hypertension diagnosed in 1990, diabetes diagnosed in 1998, and coronary artery disease diagnosed in 2006 and therefore was not caused by these disease. She reiterated that blood pressure readings had fluctuated and that it appeared that the Veteran's hypertension was, if anything, better controlled at this time than when he began getting VA treatment in 2003. She reiterated that her information regarding dates of onset were obtained from the Veteran's own reports in the VA treatment records and listed the medications being taken by the Veteran and procedures undergone. She wrote that this information was significantly more than just a summary of the history of disabilities. Rather, it was based on the review of medical and lay evidence, her thorough examination, and sound medical principles. She again summarized the evidence, noted that since 2003 the Veteran's blood pressure had been moderately well controlled without significant worsening beyond what one would expect with normal progression, and that there was a lack of medical evidence to show any permanent aggravated of hypertension beyond its normal progression. She therefore concluded that hypertension was neither caused nor permanently worsened by coronary artery disease or diabetes. The Court has held that medical reports must be read as a whole and in the context of the evidence of record. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Reading the most recent opinion of the VA examiner in the context of the other evidence of record including the prior opinions, the Board concludes that it is adequate and probative. The examiner reviewed all of the evidence and explained why she concluded that hypertension was neither caused nor aggravated by diabetes or coronary artery disease. The lack of causation was due to the fact that hypertension preceded diabetes. The lack of aggravation was due to the fact that the hypertension had not increased to a degree indicating anything other than natural progression, given the medications the Veteran was taking and his other medical conditions. As the examiner explained her reasons based on an accurate characterization of the evidence of record, her opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed); Cox v. Nicholson, 20 Vet. App. 563, 568-569 (2007) (non-physician VA health care personnel may provide competent medical evidence, as long as the examination and opinions themselves are not incomplete or otherwise insufficient, and the Board is entitled to presume the competence of such personnel with the appellant bearing the burden of rebutting this presumption). Neither the Veteran nor his representative challenged the qualifications of the VA examiner. Rather, the Veteran contended in his most recent February 2013 communication that VA had indicated he would be reexamined. The Board notes, however, that it instructed in its 2012 remands that clarifying opinions be obtained from the March 2011 VA examiner, and the RO/AMC complied with these instructions by obtaining the requested opinions. The Veteran also wrote that he was not in the VA system until 1998, so that VA did not diagnose him with hypertension until after 1998, i.e., after he was diagnosed with diabetes, contrary to what the VA examiner indicated. The VA examiner made clear in her opinion, however, that the date of diagnosis she gave was based on reports of diagnoses that the Veteran had made in the VA treatment records. In this regard, the VA examiner's statements regarding the onset of hypertension, as recounted by the Veteran, are fully consistent with the evidence of record. In May and July 2003 VA treatment notes, the Veteran reported a history of chronic hypertension. He did not report diabetes or coronary artery disease, indicating that the onset of hypertension preceded the onset of diabetes or coronary artery disease. Moreover, in the patient medical history section of a June 2005 VA treatment note, the Veteran indicated that he had diabetes since 1998, hypertension since 1990, and coronary artery disease in August 2003. In addition, the Veteran stated to the April 2006 VA examiner that he had a history of hypertension, "for over fifteen years." See April 2006 VA examination report, at 1, medical history section, number 11. The Veteran is competent to report diagnoses of hypertension made by health care professionals, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when the layperson is reporting a contemporaneous medical diagnosis). The Veteran's statements to health care providers for treatment purposes are particularly probative. Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care). See also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (recourse to the Federal Rules of Evidence "is appropriate where they will assist in the articulation of the Board's reasons"). To the extent that the Veteran now claims that his hypertension did not precede his diabetes and coronary artery disease, the Board finds that his contemporaneous statements to health care providers for treatment purposes are of greater probative weight than current statements made during the course of an appeal from the denial of compensation benefits. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). The VA examiner's reliance on the Veteran's statements made to health care providers regarding the onset of the Veteran's hypertension therefore was valid and did not constitute reliance on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board notes that the Veteran's representative in the March 2013 informal hearing presentation requested yet another remand because the October 2012 addendum did not comply with the Board's remand as the examiner noted that "she had no additional medical evidence or rationale to provide." The Board disagrees. Although the examiner did not offer additional evidence or opinions, she reviewed all of her prior opinions and the evidence in the claims file and explained the reasons for her conclusions in light of this evidence as explained above. Given the Court's guidance regarding the duty to read medical opinions as a whole and in the context of the other evidence of record, the Board finds that this was sufficient to comply with its remand instructions in explaining the examiner's rationale. To the extent that the examiner's opinion was not a model of clarity, given the multiple Board remands and reading the responses in the context of these remands and the other evidence of record, the opinions taken as a whole were nevertheless adequate and sufficient to answer the questions relating to causation and aggravation of the hypertension. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that although clarity is preferred, it cannot be demanded in every instance or "finality would forever be delayed pending perfection in draftsmanship"). As to entitlement to service connection on a direct or presumptive basis, these theories were neither pursued by the Veteran or his representative nor reasonably raised by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner). The service treatment records do not contain any references to hypertension, blood pressure readings were a normal 128/78 on the June 1969 separation examination, the only abnormality with regard to the chest noted on the examination was chronic left anterior costochondral pain for the previous two months not considered disabling, The Veteran also indicated in his medical history report that he did not have, and had never had, either high or low blood pressure. In addition, as noted above, the Veteran does not contend, and the evidence does not reflect, that hypertension was manifested in service or to a compensably disabling degree within the one year following discharge from active duty in October 1969. Hence, entitlement to service connection for this chronic disease is therefore not warranted on a chronicity, continuity of symptomatology, or presumptive basis. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is also no evidence of a relationship between hypertension and service, and the March 2011 VA examiner concluded that there was no relationship between hypertension and service based on the lack of hypertension in service or until 1990, a conclusion that has not been challenged by the Veteran or his representative. To the extent that the Veteran or his representative offer their opinion that hypertension is caused or aggravated by service connected diabetes or coronary artery disease, this appears to be testimony regarding an internal medical process which extends beyond an immediately observable cause-and-effect relationship. Opinions of this type have been found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). To the extent that the Veteran and his representative are competent to so opine, the Board finds the specific, reasoned opinions of the VA examiner as described above to be of greater probative weight than the general lay assertions of the Veteran and his representative. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for hypertension. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus and/or coronary artery disease, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs