Citation Nr: 1314554 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 08-00 178A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension, to include as secondary to herbicide exposure, diabetes mellitus, and coronary artery disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from May 1955 to September 1966. He served in Vietnam from June 13 1966 to July 7, 1966. This matter came before the Board of Veterans' Appeals (Board) from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran's appeal was before the Board in October 2011. At that time, service connection for coronary artery disease was granted, and the issues of entitlement to service connection for a skin disorder and hypertension were remanded for additional development. Those issues were again remanded in September 2012 for compliance with the October 2011 remand order. While the appeal was in remand status, service connection for a rosacea was granted. As this constitutes a full grant of that benefit, the Board will not address that issue herein. The Board notes that in an April 2013 written brief presentation, the Veteran's representative raised the issue of entitlement to a higher rate for special monthly compensation (SMC). In this regard, a December 2011 rating decision granted SMC based on the need for aid and attendance. In the April 2013 brief, the Veteran's representative argued that a higher level of SMC was warranted because the Veteran's service-connected diabetes and heart disability individually warranted an SMC rating and that such had not been considered. This issue has not been addressed by the agency of original jurisdiction (AOJ) and is therefore referred for appropriate action. FINDINGS OF FACT 1. Hypertension was not manifest in service or within one year of discharge, and is unrelated to service, to include exposure to herbicides therein. 2. Hypertension is not related to the service-connected diabetes mellitus or oronary artery disease. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. Hypertension is not proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the U. S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in December 2006 discussed the evidence necessary to support claims for service connection on a direct basis. The Veteran was invited to submit or identify evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was advised of the manner in which VA determines disability ratings and effective dates. In November 2011 the Veteran was advised of the evidence necessary to support a claim for secondary service connection. He was invited to submit or identify evidence. The Board finds that the content of the above notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Although the letter regarding secondary service connection was sent subsequent to the initial adjudication of the Veteran's claims, the Board finds that there was no prejudice as the claims were readjudicated in a July 2012 supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or SSOC, is sufficient to cure a timing defect). With respect VA's duty to assist, the Board notes that identified treatment records have been associated with the claims file. The Veteran was afforded VA examinations. The Board finds that the examinations were adequate in that the examining physicians reviewed the record, interviewed the Veteran, and performed appropriate examinations prior to providing their conclusions. The examination and addendum reports of record are thorough and consistent with contemporaneous treatment records, and adequately respond to the questions posed in this appeal. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Factual Background As an initial matter, the Board observes that the claims file contains evidence that the Veteran served in Vietnam. As such, exposure to herbicides is presumed. The Veteran seeks service connection for hypertension, and maintains that it is related either to exposure to Agent Orange, or to his service-connected diabetes or heart disease. Service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of hypertension. On reenlistment examination in May 1958, the Veteran's blood pressure was 108/72. The summary of defects and diagnoses did not include any comments related to cardiovascular disease. A September 1961 treatment record indicates a blood pressure reading of 102/70. On reenlistment examination in May 1963 the Veteran's blood pressure was 110/68. The examiner indicated "none" in the summary of defects and diagnoses. On discharge examination in September 1966, the Veteran's blood pressure was 130/70. A private hospitalization record dated in September 1982 is negative for findings suggestive of hypertension. A May 1990 VA treatment record indicates that the Veteran was status post triple bypass surgery six years previously. He was subsequently hospitalized for cardiac catheterization. With respect to past medical history, the Veteran denied hypertension. Physical examination indicated a blood pressure reading of 132/80. The discharge report indicates principle diagnoses of coronary artery disease, status post coronary artery bypass graft in December 1983, and unstable angina. A February 1996 VA treatment record lists hypertension under the heading "problems." The provider assessed hypertension and indicated that medication would be restarted. Subsequent VA records indicate hypertension. On VA examination in April 2010, the examiner reviewed the Veteran's history of coronary artery bypass grafts in 1983 and 1996, and placement of stents in 2001, 2006, and 2007. On VA examination in June 2012, the examiner indicated a diagnosis of hypertension. He concluded that hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He reasoned that the Veteran did not have a single elevated blood pressure noted in his service treatment record, and began treatment for hypertension sometime in the 1990s. He stated that it was more likely that the hypertension was related to life style changes and the aging process after separation. He also concluded that hypertension was less likely than not proximately due to or the result of the Veteran's service-connected condition. He reasoned that there was no evidence of renal impairment and certainly no evidence of renal damage due to diabetes. He also reasoned that he could find no references for hypertension being caused by ischemic heart disease, and that it was less likely than not that hypertension was due to coronary artery disease. In an October 2012 addendum, a VA examiner concluded that the currently diagnosed hypertension was less likely than not aggravated by diabetes mellitus or coronary artery disease. She reasoned that hypertension was a condition related to the peripheral vasculature rigidity/resistance and volume status, and was not impacted by coronary artery disease, which was a condition localized to the heart itself. She also indicated that it was not impacted by diabetes, which can affect the major organs but did not contribute to hypertension. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 38 U.S.C.A. § 1116(a) (West 2002) provides presumptive service connection on the basis of herbicide exposure for specified diseases manifested to a degree of 10 percent within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. In this case the service personnel records indicate Vietnam service. Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section. 38 U.S.C.A. § 1116(b)(1). In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences (NAS) under section 3 of the Agent Orange Act of 1991 [note to this section], and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review. 38 U.S.C.A. § 1116(b)(2). An association between the occurrence of a disease in humans and exposure to an herbicide agent shall be considered to be positive for the purposes of this section if the credible evidence for the association is equal to or outweighs the credible evidence against the association. 38 U.S.C.A. § 1116(b)(3). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Notwithstanding the provisions of §§ 3.307, 3.309, if a claim fails to satisfy the criteria for service connection on a presumptive basis due to herbicide exposure, this fact does not preclude an appellant from establishing service connection with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Having carefully reviewed the record, the Board concludes that service connection is not warranted for hypertension. In this case the Board notes that there is a remarkable lack of credible evidence of pathology or treatment in proximity to service or within years of separation. While the Veteran has pointed to exposure to herbicides in service and asserts that it is related to his subsequent hypertension, the records do not demonstrate that the currently diagnosed hypertension is related to such exposure. Rather, the VA examiner concluded, following a comprehensive review of the record and the Veteran's history, as well as physical examination, that hypertension was more likely related to life style changes and the aging process after separation. Moreover, even presuming herbicide exposure, hypertension is not among the presumptive conditions noted in 38 C.F.R. § 3.309(e). In fact, the Secretary has determined that a presumption of service connection for hypertension is not warranted. 77 Fed. Reg. 81332 (August 10, 2012). This finding was based upon extensive evaluations conducted by NAS, as summarized in its report "Veterans and Agent Orange: Update 2010" (Update 2010). The NAS is mandated, to the extent possible, to determine (1) whether there is a statistical association between the suspect diseases and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; (2) the increased risk of disease among individuals exposed to herbicides during service in the Republic of Vietnam during the Vietnam era; and (3) whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the health outcome. According to the NAS, the current sound medical and scientific evidence does not indicate a positive association between exposure of humans to herbicides and the development of hypertension. Thus, such disability is not subject to service connection on a presumptive basis. Furthermore, as a lay person, the Veteran is not competent to offer an opinion on a complex medical question, such as linking hypertension to herbicide exposure. For the purpose of secondary service connection, the Board observes that there are diagnoses of diabetes mellitus and coronary artery disease that are subject to service connection. However, the Veteran has neither produced nor identified competent evidence showing that his service-connected diabetes or coronary artery disease either caused or aggravated the claimed hypertension. On the other hand, the June 2012 VA examiner concluded that hypertension was less likely than not incurred in or caused by service, and that it was also not proximately due to or the result of service-connected disability. Moreover, the VA examiner who reviewed the claims file and provided the October 2012 addendum concluded that hypertension was less likely than not aggravated by diabetes or coronary artery disease. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service or to a service-connected disability. While the record demonstrates that the Veteran has a diagnosis of hypertension, it does not contain reliable evidence which relates this disease to any incident of service, to include any exposure therein. Also absent from the record is reliable evidence of a relationship between the service-connected diabetes mellitus or coronary artery disease and the claimed hypertension. As noted, the June 2012 VA examiner related the Veteran's hypertension to lifestyle changes and the aging process rather than any incident of service. The Board has considered the Veteran's lay assertion that his hypertension is the result of herbicide exposure in service, or to his service-connected diabetes mellitus or coronary artery disease. Certainly, he is competent to report sensory or observed symptoms, and his statements in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, however, a lay person is not competent to diagnose most medical disorders or render an opinion as to the cause or etiology of any current disorder because he or she does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In this instance, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as diagnosing hypertension and linking such to in-service herbicide exposure or other incident of service. Given the Veteran's lack of demonstrated medical expertise, his statements regarding any such diagnosis or link are much less probative than the findings of the competent VA health care specialists discussed above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). In this case, the VA examiners have concluded that hypertension is not related to service or to the service-connected diabetes or heart disease. Both examiners provided reasoned opinions, based on complete review of the record and review of pertinent literature. In assigning high probative value to these opinions, the Board notes that the VA examiners had the claims file for review, specifically discussed evidence contained in the claims file, and discussed the rationale underlying their conclusions. There is no indication that the examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. The Board thus finds the examiners' opinions to be of greater probative value than the Veteran's unsupported statements to the contrary. For these reasons, the Board concludes that the claim of entitlement to service connection for hypertension must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs