Citation Nr: 1315024 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 05-24 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus or posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied service connection for hypertension. An April 2010 Board decision denied service connection for hypertension. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand (Joint Motion) in November 2010. By order dated in December 2010, the Court granted the Joint Motion and remanded the matter for compliance with its instructions. The Board remanded this claim in September 2011. At that time, the Board noted that the Court had remanded the claim for the Board consider whether the Veteran's hypertension was secondary to his PTSD. The Board stated that since the Veteran had recently been service-connected for diabetes mellitus, his claim for service connection for hypertension should be evaluated as secondary to diabetes mellitus as well as PTSD. The case is now before the Board for final appellate consideration. FINDING OF FACT There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran's hypertension is related to active duty, or that it was proximately caused or aggravated by a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by active service, may not be presumed to have been so incurred or aggravated, and was not incurred or aggravated as a result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in an August 2008 letter. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, medical articles submitted by the Veteran, and the Veteran's statements in support of his claim. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. VA provided several examinations for this claim. As discussed below, each of the resulting opinions were incomplete in some way. As a result, VA obtained a VA medical expert opinion in January 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA medical expert opinion in this case is more than adequate. It considers the Veteran's statements, treatment records and examination results. It addresses the medical articles submitted by the Veteran as well as medical articles found by the medical expert's own research. It provides rationales for the opinions offered. Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including hypertension, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen, supra. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Post-service medical treatment records show that the Veteran had been diagnosed as having hypertension. The Veteran contends either that he incurred hypertension as a result of active duty, or that his service-connected diabetes mellitus or PTSD caused or aggravated his hypertension. Following a careful review of the record, the Board finds that the preponderance of the evidence is against service connection for hypertension on a direct basis, a presumptive basis or as secondary to a service-connected disability. Service treatment records are silent for any findings or treatment for high blood pressure. Post-service VA treatment records show that the first indication that the Veteran was diagnosed as having hypertension was in January 2005. Prior to January 2005, the Veteran did have a recording of blood pressure reading of 168/96 in November 2004. There is no medical evidence of record earlier than November 2004 showing that the Veteran had high blood pressure. The long time lapse between service and any documented evidence of treatment can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, a careful review of the claims file reveals that there is no competent medical evidence linking hypertension to service. VA medical treatment records regarding hypertension make no mention of any link between this condition and service, and the medical evidence of record does not otherwise demonstrate it is related to service. The report of an October 2011 VA examination provides the opinion that the Veteran's hypertension was not related to his military service. The examiner explained that a review of the claims file showed that there was no evidence in the claims file of a diagnosis of hypertension. The Board finds that this opinion constitutes highly probative evidence against service connection on a direct basis. The examiner explained his opinion with reference to specific findings in the Veteran's service treatment records. This fact is particularly important, in the Board's judgment, as the reference makes for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The evidence also fails to show that the Veteran was diagnosed with hypertension within one year following his separation from service. Hypertension was not diagnosed until 2004. Thus, service connection on a presumptive basis is not warranted. See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Turning to secondary service connection, the record contains a September 2010 VA examination report. The report states that the Veteran's hypertension preceded his diabetes mellitus, which was not diagnosed until 2010, and therefore was not caused by the diabetes mellitus. The opinion did not address aggravation of hypertension by diabetes mellitus. The opinion was not based on a review of the claims file. However, the medical evidence of record does show that the Veteran's hypertension preceded his diabetes mellitus. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (VA cannot reject a medical opinion simply because it is based on a history supplied by the Veteran, and the critical question is whether that history was accurate); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). The report of a June 2011 VA examination provides the opinion that the Veteran's hypertension is not related to his diabetes mellitus, because it preceded the diagnosis of diabetes. The report states that the Veteran's diabetes mellitus aggravated the Veteran's hypertension. The rationale was that diabetes could cause and aggravate hypertension. The Board finds that this medical opinion has little probative weight. While the examiner offered a vague medical principle with the opinion, he made no reference to any current examination results, any specific findings in the Veteran's medical history, or any clinical data. This failure is particularly important, in the Board's judgment, as such references make for a more convincing rationale. See Bloom, supra; Prejean, supra; and Elkins, supra. The report of the October 2011 VA examination provides the opinion that it was not at least as likely as not that the Veteran's hypertension was due to or aggravated by his PTSD or diabetes mellitus. The examiner explained that according to all standard medical references, diabetes mellitus had not been found to cause hypertension. PTSD had not been shown by credible evidence from peer-reviewed medical literature to cause, or aggravate, hypertension, according to the examiner's own review of current literature on the Up To Date online resource. The Board finds that this medical opinion constitutes highly probative evidence that the Veteran's hypertension was not caused by his diabetes mellitus, and was not caused or aggravated by his PTSD. The examiner explained his opinions by referring to medical principles found by his own review of medical literature. However, as the examiner did not provide a rationale for his opinion that the Veteran's diabetes mellitus did not aggravate his hypertension, the opinion has little probative weight on that question. See Bloom, supra; Prejean, supra; and Elkins, supra. The Board requested a VA medical expert opinion in November 2012. The Board received the opinion in January 2012. The medical expert's references to the Veteran's past medical and procedural history make it clear that she reviewed the claims file in detail. The medical expert provided the opinion that it was not at least as likely as not that the Veteran's hypertension was etiologically related to his period of active service. She explained that a review of the medical records showed that he reported he was diagnosed with hypertension in 2002, which she noted was well after his service time ended. The medical expert provided the opinion that it was not at least as likely as not that the Veteran's hypertension was proximately due to his service-connected diabetes mellitus and/or PTSD. She stated that there was no clear evidence showing a clear causal relationship with hypertension to diabetes mellitus or PTSD. She stated that she reviewed information provided by the Veteran, reviews available on Up To Date, and articles from the Journal of the American Medical Association and the Journal of Hypertension. The medical expert addressed each article provided by the Veteran in detail. She summarized that in each case, the studies found interesting, possible correlations with PTSD and cardiovascular health and diabetes. However, she emphasized that "in no way do these studies show a direct causal link from PTSD or diabetes to the development of HTN and all studies recommend further research to help better clarify their associations." The medical expert also explained that she reviewed three other articles, which she identified by name. She stated that each article again showed possible association of PTSD or diabetes with hypertension but none were able to show a direct cause or link, and all studies suggested further research was needed. The medical expert stated that it was not at least as likely as not that the Veteran's hypertension had been aggravated by his service-connected type II diabetes mellitus and/or PTSD. She explained that there was no evidence in the available literature to suggest that PTSD had a direct link to cause or exacerbate/aggravate hypertension. She noted that diabetes mellitus could in some cases lead to additional medical conditions such as renal vascular disease that may in turn aggravate hypertension. However, in her review of the available medical records for this Veteran, there was no evidence of these diabetes-related conditions and there was no evidence that diabetes alone, in the absence of these sequalae, would aggravate hypertension. The Board finds that this medical opinion constitutes highly probative evidence that the Veteran's hypertension is not related to his active duty, and was not caused or aggravated by his diabetes mellitus or his PTSD. The examiner explained her opinions by referring to specific findings in the Veteran's medical history. She also reviewed medical articles submitted by the Veteran and articles she found by her own research. She explained how these article did not show that it was at least as likely as not that the Veteran's diabetes mellitus and/or PTSD caused or aggravated his hypertension. See Bloom, supra; Prejean, supra; and Elkins, supra. The Board is aware that in March 2013 correspondence the Veteran's attorney argued that the medical expert herself acknowledged that a consistent connection or link existed between the Veteran's hypertension and his diabetes mellitus and/or PTSD, albeit not a causal one. The attorney also asserted that in denying a nexus, the medical expert applied a legal standard that was stricter than that set forth in VA regulations. However, a review of the medical expert's opinion demonstrates that for each question posed to her, she provided a negative opinion that correctly applied the equipoise standard applicable to VA claims. Moreover, the Board's own review of the medical articles submitted by the Veteran demonstrates that they do not satisfy the equipoise standard. They simply do not show that it is at least as likely as not that in this particular case the Veteran's service-connected diabetes mellitus or PTSD caused or aggravated his hypertension. These documents are simply too general in nature to provide, alone, the necessary evidence to show causation or aggravation. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The medical treatise, [textbook, or article] must provide more than speculative, generic statements not relevant to the veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. Wallin v. West, 11 Vet. App. 509, 514 (1998). The articles in the current case do not provide any statements for the facts of the Veteran's specific case. Therefore, the Board concludes that they do not show that it is at least as likely as not that in this particular case the Veteran's service-connected diabetes mellitus or PTSD caused or aggravated his hypertension. The Board acknowledges the Veteran's own assertions in support of his claim. He is competent to testify as to his observable symptoms during and after active duty. The Board finds that his assertions are credible. However, the Veteran's contentions that he incurred hypertension during active duty, or that his service-connected diabetes mellitus or PTSD caused or aggravated his hypertension, do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issues in this case (whether the Veteran's hypertension is related to active duty, and whether his service-connected diabetes mellitus or PTSD caused or aggravated his hypertension) fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, supra. The Veteran is competent to state that he observed the claimed symptoms of hypertension during or after service. The Board finds him to be credible in this regard. However, he is not competent to attribute the coincidence of symptoms occurring during or after service, or before or after the development of diabetes mellitus and PTSD, as establishing the diagnosis and etiology of his current hypertension. As such, the Board finds that the Veteran's assertions are outweighed by the VA medical expert opinion received in January 2013. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for hypertension, to include as secondary to diabetes mellitus or PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus or PTSD, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs