Citation Nr: 1315929 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-04 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran had active service from November 1964 to October 1969 and from September 1970 to August 1974. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The case was previously before the Board in October 2010, and was remanded for additional development. With respect to the issue decided herein, the Board is satisfied that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, treatment records from Mountain Home VA Medical Center and Social Security Administration records have been obtained and associated with the claims file. FINDINGS OF FACT The preponderance of the competent, credible, and probative evidence shows that the Veteran's hypertension is aggravated by service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension secondary to service-connected diabetes mellitus are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The claim for service connection for hypertension, to include as secondary to service-connected diabetes mellitus has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision (grant of service connection for service connection for hypertension), no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition of hypertension is considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. Under 38 C.F.R. § 3.310, VA will not concede such aggravation unless the baseline level of severity of the non-service connected disease or injury is established by medical evidence created before the onset of aggravation and by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service connected disease or injury. The RO will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (rating schedule) and determine the extent of aggravation by deducting the baseline level of severity as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In rendering a (merits) 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection for Hypertension The Veteran is seeking service connection for hypertension, which he contends is caused by service-connected diabetes mellitus. Alternatively, he asserts that his current hypertension is due to exposure to Agent Orange in the Republic of Vietnam while in service. At the outset, the Board notes that the Veteran was granted service connection for type II diabetes mellitus associated with herbicide exposure in an August 2005 rating decision. As noted above, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen, 7 Vet. App. at 448. The Veteran was afforded a VA examination in February 2008 to assess his diabetes mellitus disability, in which hypertension was diagnosed. The examiner reviewed the medical evidence of record, interviewed the Veteran, and reviewed results from urine and blood tests. The VA examiner concluded that hypertension was not caused by diabetes because hypertension was diagnosed prior to diabetes mellitus. The VA examiner opined, however, that "diabetes worsens vascular disease of all kinds, including hypertension." The examiner noted that the date of the hypertension diagnosis and the date of the onset of diabetes was in 1998. The record includes a private treatment note from Dr. Campbell dated January 1998 which noted a positive diagnosis of hypertension, and diabetes mellitus noted as "borderline". The Board finds the February 2008 VA examination to be both competent and highly probative. The VA examiner reviewed the medical evidence of record, and noted the Veteran's medical history. The examination report included subjective information regarding the disability, objective medical findings, and a thorough review of the Veteran's results from blood and urine tests. See Prejean, 13 Vet. App. at 448-9. Moreover, upon review of the evidence of record, including VA treatment records, private treatment records, the Veteran's statements, and Social Security Administration records (disability was granted for heart failure and a secondary diagnosis of mood disorders), the Board finds that there is no other competent medical evidence of record which contradicts the findings of the February 2008 VA examiner. Based on the foregoing evidence, the Board finds that service connection for hypertension is warranted. The February 2008 VA examiner opined that the Veteran's service-connected diabetes mellitus disability worsened his currently diagnosed hypertension. The Board finds that the VA examiner's opinion establishes that the Veteran's hypertension is aggravated by his service-connected disability and the report is competent and probative. Accordingly, the requirements for service connection, including the criteria for service connection under 38 C.F.R. § 3.310, are met, and the claim of service connection for hypertension is granted. The Board notes that a discussion as to whether the Veteran's hypertension is caused by or related to exposure to Agent Orange is not warranted as service connection has been established under the theory of aggravation. In summary, and for the reasons and bases set forth above, the Board finds the preponderance of the evidence supports the grant of service connection for hypertension based on aggravation. All reasonable doubt has been resolved in favor of the Veteran in rendering this decision. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hypertension, to the extent that it is aggravated by the service-connected diabetes mellitus, is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs