Citation Nr: 1314738 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-18 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from August 1984 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. On September 22, 2010, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In March 2011, the Board denied the claim for a rating in excess of 10 percent for pes planus and this matter is no longer on appeal. At the same time, the Board reopened and remanded the claim for service connection for hypertension, to include as secondary to service-connected diabetes mellitus. FINDING OF FACT The Veteran's hypertension is not related to her military service; it was not manifested within one year following separation from service; and it was not caused or made worse by service-connected diabetes. CONCLUSION OF LAW The Veteran does not have hypertension that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 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 a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Here, the Veteran was sent a June 2008 pre-adjudication letter that fully addressed all notice elements. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing a claim. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained all of the service treatment records and identified relevant post-service VA and private treatment records. In March 2011, the Board remanded the claim, in part, to provide the Veteran with a VA examination to obtain an opinion addressing whether the claimed hypertension was directly related to service or was otherwise caused by or aggravated by service-connected diabetes mellitus. At a June 2011 VA examination, the examiner did not provide an explanation for a negative opinion for direct service connection of the Veteran's hypertension. As a result, in a September 2012 addendum to the June 2011 VA examination report, a clinician discussed whether or not the hypertension was the result of the Veteran's active duty, or whether or not the hypertension was caused or aggravated by the service-connected diabetes mellitus and provided an explanation for each opinion. Accordingly, there has now been compliance with the prior remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). VA treatment records were electronically available through the Compensation and Pension Records Interchange (CAPRI) and were uploaded to the Virtual VA eFolder. These records were considered when the Veteran's claim was subsequently readjudicated in October 2012. The Veteran has not identified any additional outstanding evidence and review of the paper claims file as well as Virtual VA does not reveal any additional documents pertinent to the claim decided herein. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. II. Service Connection The Veteran has claimed entitlement to service connection for hypertension. She contends that her current diagnosis is related to her service-connected diabetes mellitus. To establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, such as hypertension, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The United States Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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 (a) proximately caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsens. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Pursuant to 38 C.F.R. § 4.104 , Diagnostic Code 7101 (2012), the term "hypertension" means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. A 10 percent rating is defined as diastolic pressure predominately 100 or more, or; systolic pressure predominately 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominately 100 or more who requires continuous medication for control. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). At the outset, the Board notes that the Veteran has a current diagnosis of hypertension. See VA examination reports, November 2002, March 2006, June 2011, and September 2012. Thus, element (1) of Hickson has been satisfied for this service connection claim. Turning to the Veteran's service treatment records, the Board notes that there is no evidence of complaints, treatment, or diagnosis of hypertension during the Veteran's period of active service. On separation in July 1986, her blood pressure reading was 118/60 (diastolic and systolic readings well below the criteria established by Diagnostic Code 7101). Hypertension was neither reported nor observed at that time. Following military service, VA treatment records beginning in August 2002 reference the Veteran's complaints of high blood pressure and show ongoing treatment for hypertension and diabetes, but did not reflect that the Veteran had any work-up for heart or renal disease. The Veteran was prescribed Lisinopril and took one tablet daily for protection of her kidneys related to diabetes. An October 2005 record included MRI results that showed that there was low density 1.5 cm focus in the left kidney, which was indeterminate. A May 2011 physical examination revealed that the liver, kidney, and spleen were not palpable. They were soft and nontender. Private treatment records from UAMS Medical Center dated in January 2005 included an assessment of hypertension and diabetes mellitus. During her September 2010 videoconference hearing, the Veteran indicated that she had to take her hypertension medication at night, which in turn affected her sleep. Here, it has neither been alleged or shown that the Veteran's hypertension began in service. As noted above, service treatment records (STRs) are completely negative for any complaints, treatment, or diagnoses related to hypertension, and the first documentation of any complaints of hypertension is in August 2002, more than sixteen years after her discharge from service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). There is no evidence showing that the Veteran's hypertension began in service or within the first year following service. Thus, the Board finds that the preponderance of the evidence is against the claim on a direct basis and a presumptive basis. In regards to whether the Veteran's hypertension was related to service or caused or aggravated by her service-connected diabetes mellitus, there appears to be conflicting medical evidence. The Board, therefore, must weigh the credibility and probative value of these opinions, and in so doing, may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Evidence for the Veteran's claim includes a July 2007 statement, in which the Veteran's VA physician stated that the Veteran's "[d]iabetes is aggravating her cardiovascular system with atherosclerosis and [a]ffecting her hypertension adversely." Evidence against the Veteran's claim includes a November 2002 VA examination, in which it was noted that the Veteran had been diabetic since 1986 and was on a diabetic diet alone. She was started on treatment for hypertension in August 2002. She took hydrochlorothiazide 50 mg daily for her hypertension. She had no history of heart disease. Her blood pressure readings were 146/84, 140/84, and 140/82. The heart was not enlarged, the rhythm was regular, and a heart murmur was not heard. The final diagnoses were type II diabetes and essential hypertension that was controlled on therapy. The examiner opined that the Veteran's hypertension was not secondary to type II diabetes. The examiner stated that there was no possible clinical relationship between the development of hypertension and diabetes, except in patients with advanced diabetic nephropathy who may be hypertensive. On March 2006 VA examination, the examiner noted that the Veteran was diagnosed with hypertension in 2002. Initially, the condition was treated with diet, alone. Eventually, she required anti-hypertensive medications for the condition. The Veteran reported that she required anti-hypertensive medications for the condition. She stated that her hypertension was well controlled on current medications consisting of Lisinopril and Nifedipine, which she took on a daily basis. She denied having any symptoms or end-organ damage attributable to her hypertension at the present time. On examination, blood pressure readings were 135/80 and a pulse of 74. In February 2006, her blood pressure was 106/62 and previously was 112/68. In January 2006, her blood pressure was 134/78 and in August 2005, it was 126/67. A cardiac examination revealed a regular rate and rhythm without murmur on S3. The examiner noted that multiple lab studies over the years were unremarkable. The Veteran's recent urine sample revealed pyuria as well as +1 protein, but this differed from previous samples. The examiner opined that the Veteran's hypertension was essential in nature as workup of the time of onset failed to reveal any evidence of end-organ damage, which would account for the hypertension. Therefore, the hypertension was essential in nature and not related to diabetes mellitus. On June 2011 VA examination, the examiner noted that the claims file was reviewed. The examiner also noted that the Veteran's hypertension was diagnosed in 2002 and that her current medication was amlodipine, 60 mg a day. The examiner specifically reported that it was noteworthy that after 9 years of high blood pressure, the Veteran still had normal renal function. Two months ago, her serum creatine was 0.7, BUN 7, and creatine clearance greater than 60 and she had absolutely no proteinuria. Her recent outpatient blood pressure readings were normal in the range of 130/70, 128/70, and 130/80. She had no history of congestive heart failure, stroke, myocardial infarction, or any vascular event secondary to hypertension. The diagnosis was essential hypertension. Based on the results of the examination, as well as a review of the claims file, the examiner opined that the Veteran's hypertension was less likely than not (less than 50 percent probability) incurred in or caused by service; nor is it proximately due to or the result of service-connected diabetes mellitus. The examiner reasoned that the severity of the Veteran's service-connected diabetes mellitus, type 2, was not sufficient enough to induce hypertension by the fact that she did not have renal insufficiency or heavy proteinuria. As such, there was no mechanism to induce hypertension or to aggravate it. In a September 2012 addendum report to the June 2011 VA examination, a clinician reviewed the results of the VA examination and the claims file. The clinician opined that the Veteran's hypertension was less likely than not (less than 50 percent probability) incurred in or caused by service. Additionally, it was opined that the Veteran's hypertension was less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected condition of diabetes mellitus. It was also opined that the hypertension was less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the service-connected diabetes mellitus. The clinician explained that the Veteran had no elevated blood pressure readings while on active duty, and was not diagnosed with hypertension until 2002. It was pointed out that medical principles dictated that it was not until there was a showing of diabetic nephropathy, manifested by elevated creatinine, decreased glomerular filtration rate, and proteinuria, that diabetes causes or aggravates hypertension. The Veteran had essential hypertension, which was well controlled with medication. There was no indication of persistent worsening. It was also reported that while many diabetics also have hypertension, the hypertension was related to other co-morbid conditions. In considering these conflicting medical opinions, the Board notes that the Court has provided "important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). These factors are whether (1) the opinion is based upon sufficient facts or data, (2) the opinion is the product of reliable principles and methods and (3) whether the expert has applied the principles and methods reliably to the facts of the case. In other words, most of the probative value of a medical opinion comes from its reasoning. After considering conflicting opinions discussed above in light of the criteria outlined in Nieves-Rodriguez, the Board finds that the November 2002, March 2006, June 2011, and September 2012 VA medical opinions outweigh that of the July 2007 VA physician's. First, the Board observes that the VA physician in November 2002 interviewed and examined the Veteran. The VA examiners in March 2006 and June 2011 interviewed and examined the Veteran, reviewed the Veteran's VA clinical record, including post-service diagnostic studies, and provided a rationale for their opinions. In June 2011 and the September 2012 addendum, the examiners also reviewed the claims file, including the service treatment records. The VA examiners' reports were also consistent with the evidence of record and each provided some explanation for the opinion. Given the above, the opinions of the November 2002, March 2006, June 2011, and September 2012 VA examiners have more probative weight the positive opinion provided by the Veteran's VA treating physician in July 2007. 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). The Board finds that the VA physician's July 2007 statement appears to base his opinion upon a determination that the Veteran has atherosclerosis. A review of the record, however, fails to reveal a diagnosis of atherosclerosis. The VA treatment records do not contain any cardiac work-up or findings of atherosclerosis. There are no X-ray, echocardiogram, or electrocardiogram findings of any heart disease or abnormalities. Further, it does not appear that the VA physician reviewed the claims folder. Thus, without more, the Board is unable to rely upon the July 2007 VA physician's statement to support a finding of service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (medical opinion is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one'" (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994))). As to the Veteran's assertions that her hypertension is related to her service-connected diabetes mellitus, the Board notes that generally etiology of dysfunctions and disorders is a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the appellant, as a lay person without the appropriate medical training and expertise, is not competent to make such an etiological conclusion with regard to her hypertension and diabetes mellitus disabilities, especially in light of the fact that the probative evidence fails to demonstrate that her symptoms of hypertension were related to her diabetes mellitus or permanently increased in severity as a result of her diabetes mellitus. See Jandreau, supra. Based on the foregoing, the preponderance of the evidence is against the claim. In sum, the most convincing evidence does not establish that the Veteran's hypertension is related to service, or to a service-connected disability. There are no contemporaneous records of any complaints, findings, treatment, or diagnosis of chronic high blood pressure during service, and the Veteran's separation examination was negative as to the claim on appeal. There is no diagnosis of hypertension within one year of separation from active duty. Instead, the record establishes that, more than sixteen years after separation, the Veteran received an initial diagnosis of high blood pressure. Following four VA examinations and years of ongoing treatment, the record lacks a convincing medical opinion linking hypertension to either active duty, or to a service-connected disability. While the Board has taken the Veteran's statements regarding hypertension into account, she has not demonstrated the medical competency to provide an etiological link between diabetes and hypertension. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The preponderance is against the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, and the claim consequently must be denied. ORDER Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, is denied _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs