Citation Nr: 1316814 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 06-18 126 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to November 1968. He also had a period of other than honorable service from April 1969 to June 1973. A December 1978 administrative decision found that the latter period of service was dishonorable for VA purposes and that the Veteran was not entitled to benefits based on that period of service. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's claim was subsequently transferred to the RO in Winston-Salem, North Carolina. The Board remanded the case for further development in November 2010 and November 2012. That development was completed, and the case has since been returned to the Board for appellate review. The Veteran testified before the undersigned Veterans Law Judge in May 2010. A transcript of that proceeding is of record. FINDING OF FACT The Veteran has not been shown to currently have hypertension that manifested in service or within one year thereafter or that is causally or etiologically related to his military service or to a service-connected disorder. CONCLUSION OF LAW Hypertension was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Board does acknowledge that the RO did not provide the Veteran with completely adequate notice prior to the initial decision in May 2006. Nevertheless, the RO did send the Veteran letters in January 2006 and September 2006. The Board finds that any defect with respect to the timing of the notice requirement was harmless error. In this regard, the Board notes that, while notice provided to the Veteran was not given prior to the first agency of original jurisdiction (AOJ) adjudication of the case, notice was provided by the AOJ prior to the transfer and certification of the Veteran's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the Veteran's claim was readjudicated in a supplemental statement of the case (SSOC). Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, and he has taken full advantage of these opportunities, submitting evidence and argument in support of his claim. Viewed in such context, the furnishing of notice after the decision that led to this appeal did not compromise the essential fairness of the adjudication. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004). The Veteran has had a "meaningful opportunity to participate effectively," Dingess/Hartman, and the Board finds that the present adjudication of the appeal will not result in any prejudice to the Veteran. Therefore, with respect to the timing requirement for the notice, the Board concludes that to decide this appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The January 2006 letter informed the Veteran of what information and evidence was necessary to substantiate the claim for service connection on both a direct and secondary basis. The letter also notified her of the division of responsibilities in obtaining such evidence. In addition, the September 2006 letter explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. He has not identified any outstanding records that are relevant to the claim being decided herein. The Veteran also was afforded VA examinations in April 2006, and November 2009, and December 2011. In compliance with the prior remands, an additional medical opinion was obtained in December 2012. 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). As discussed below, the Board finds that the December 2012 VA medical opinion obtained in this case is adequate, as it is predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. It considers all of the pertinent evidence of record, to include the statements of the appellant, and provides a complete rationale for the opinions stated, relying on and citing to the records reviewed as well as medical literature. The examiner discussed all of the concerns addressed in the prior remands. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was also provided an opportunity to testify at a hearing before the undersigned Veterans Law Judge. During that hearing, the undersigned Veterans Law Judge identified the issue appeal and clarified where the Veteran had received treatment and whether there were any outstanding records. The undersigned also inquired as to whether any of his doctors had ever provided a nexus opinion that would support his claim. In addition, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). For these reasons, the Board concludes that VA has fulfilled the duty to notify and assist the Veteran in this case. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 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). Service connection for certain diseases, such as cardiovascular-renal disease, may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which 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) proximately 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 aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, as the claim was pending prior to this amendment, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for hypertension. As previously noted, the Veteran served on active duty from November 1964 to November 1968 and from April 1969 June 1973; however, the character of discharge for the latter period of service was other than honorable service. As a result, he is not entitled to benefits based on that latter period of service. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of hypertension. In fact, at his November 1968 separation examination, the Veteran denied having high or low blood pressure, and his blood pressure was normal at that time, as it was recorded as 126/74. (The term "hypertension" refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm. Hg systolic and from 90 mm. Hg diastolic. See Dorland's Illustrated Medical Dictionary 635 (26th ed. 1985). Similarly, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term "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. See 38 C.F.R. § 4.104, Code 7101, Note 1 (2012)). Moreover, the Veteran did not seek treatment immediately following his separation from service in November 1968 or for many years thereafter. In fact, his blood pressure was normal (110/70) at the time of his April 1969 entrance examination for his second period of service. A reenlistment examination in November 1970 also documented normal blood pressure at 118/76. There are no other medical records documenting elevated blood pressure readings or a diagnosis of hypertension for many decades following the Veteran's military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of hypertension, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). The Board acknowledges the Veteran's hearing testimony that he was told that he had high blood pressure in service and that he was treated for hypertension since shortly after service. However, his testimony appears to refer to his second period of service, as he claimed that he was diagnosed during his third tour in Vietnam. The record indicates that he served in Vietnam from January 1966 to September 1967, from February 1968 to November 1968, and from August 1970 to September 1971. Thus, his third tour would have been during his second period of service between April 1969 and June 1973, and he is barred from entitlement to benefits for that period of service. Moreover, his third tour began over one year after his first period of service. Therefore, based on the foregoing reasons, the Board finds that hypertension did not manifest in service or within one year thereafter. In addition to the lack of evidence showing that hypertension manifested during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran's military service. As noted above, the record shows that there were no complaints, treatment, or diagnosis of such a disorder in service. As such, there is no injury, disease, or event to which a current disorder could be related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Therefore, the Board finds that hypertension did not manifest during service or for many years thereafter and have not been shown to be causally or etiologically to an event, disease, or injury in service. As to the Veteran's claim that his hypertension is related to his service-connected type II diabetes mellitus and PTSD, the Board finds that the more probative evidence of record does not support this contention. Although the Veteran has a current diagnosis of hypertension and is service-connected for type II diabetes mellitus and PTSD, the more probative evidence has not established a relationship between these disorders. In this regard, the April 2006 VA examiner opined that hypertension was less likely than not due to diabetes because the two disorders were diagnosed at the same time. In so doing, he observed that the Veteran was apparently diagnosed with diabetes in August 2000, but was not treated at that time, and that he also had slight systolic hypertension that was not treated. It was also noted that the Veteran's diabetes was not well-controlled, but that there was no history of renal disease or proteinuria. The examiner noted that the Veteran's diabetes was not well-controlled. Similarly, the November 2009 VA examiner stated that the Veteran's hypertension was not caused by diabetes because those two conditions had an onset at the same time. The December 2011 VA examiner also opined that the Veteran's hypertension was less likely than not the result of his diabetes. She noted that VA treatment records reflected that these conditions were diagnosed at about the same time. She explained that diabetes can potentially aggravate hypertension in three ways. In this regard, she indicated that hyperinsulinemia can increase systemic blood pressure. She also noted that diabetic patients who start on insulin can have a hypertensive response, possibly mediated by weight gain and the prohypertensive effect of insulin. Volume expansion can also be caused by insulin or hyperglycemia-induced increase in the filtered glucose load, which in turn, causes salt loading which tends to raise blood pressure. Additionally, increased arterial stiffness can contribute to increased systolic pressure. The examiner explained that these mechanisms cannot definitively be stated as having a cause and effect relationship between the development of hypertension in people with diabetes, and she stated that there is no evidence that hyperglycemia directly increases blood pressure. She also commented that there is no common physiologic pathway between diabetes and hypertension, although many people have these disorders concurrently, especially people who have predisposing factors to both diseases separately, such as elevated body mass index (BMI), sedentary lifestyle, hyperlipidemia, unhealthy dietary practices, genetics, race, etc. In this Veteran, other factors contributing to the development or aggravation of hypertension included elevated BMI, history of tobacco use, hyperlipidemia, and a sedentary lifestyle. Because of all of the above factors, the December 2011 VA examiner indicated that she could not state whether the Veteran's diabetes aggravated his hypertension in this case given his other risk factors. In addition, the December 2012 VA examiner reviewed the Veteran's claims file and noted that he was first diagnosed with PTSD in 1993. He was on no medications at that time, and he was a tobacco user. She reviewed the mental health and general medical notes after that time, with particular attention paid to blood pressure readings and treatment of hypertension. She then opined that it was less likely than not that hypertension was due to PTSD. While some studies have indicated a link between PTSD and an increased risk of developing hypertension, she noted that not all people with PTSD have hypertension. She indicated that, because hypertension is generally a condition with many complex contributing causes, a careful review of an individual's medical history must be undertaken in order to determine whether there is a 50 percent or greater chance that hypertension was caused or aggravated by PTSD. The Veteran was noted to have PTSD as early as 1993, but hypertension did not develop until 2000. The examiner concluded that PTSD did not cause hypertension. At the time hypertension was diagnosed, the Veteran had multiple risk factors, as detailed in the examiner's prior report, as well as personal stress unrelated to PTSD and chronic pain. Additionally, treatment records were silent for other outward signs of autonomic stimulation, which may have been expected if elevated blood pressures were attributable to a hyperadrenergic state. In later years, when treatment records documented symptoms and treatment of PTSD, the Veteran's blood pressure remained stable, and there was no apparent requirement for acceleration of the medication regimen needed to control the Veteran's blood pressure. For these reasons, PTSD did not appear to have aggravated hypertension beyond its normal progression. In addition, the December 2012 VA examiner reiterated that diabetes did not cause hypertension because the two disorders were diagnosed at about the same time. She also restated the potential pathways for aggravation of hypertension by diabetes. She emphasized that, in order to state whether diabetes aggravated hypertension in this Veteran, one would have to carefully peruse medical history and other risk factors. A review of records indicated numerous other risk factors, which have been previously discussed. Because of these factors, the examiner concluded that it was less likely than not that hypertension was aggravated beyond its normal progression by diabetes. Thus, all of the medical opinions weight against the Veteran's claim. The Board finds the December 2012 VA examiner's opinion to be particularly probative given her review of the record, discussion of risk factors, and thorough rationale. Simply put, the evidence weighs against a finding that the Veteran's service-connected type II diabetes mellitus and PTSD caused or aggravated his hypertension. Accordingly, service connection is not warranted on a secondary basis. Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for hypertension is not warranted. ORDER Service connection for hypertension is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs