Citation Nr: 1317218	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  08-20 744	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus or coronary artery disease (CAD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1969 to January 1972.

This case comes before the Board of Veterans' Appeals  (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, in which the RO, in pertinent part, denied service connection for hypertension and a heart condition.

Prior to certifying this case to the Board, in a September 2011 Decision Review Officer decision, the Phoenix RO granted the Veteran's claim of service connection for coronary artery disease (CAD).  Because the September 2011 decision represents a full grant of the benefit sought with respect to this issue, this matter is no longer before the Board for consideration.

When this case was before the Board in November 2012, it was remanded for additional development.  It has since been returned to the Board for further appellate review.

In April 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO.  Unfortunately, the Board was unable to produce a transcript of the proceeding.  In an August 2012 letter, the Veteran was notified that a transcript could not be prepared, and he was provided an opportunity to request another hearing.  A review of the record shows that he did not respond to that letter.

In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claim.  A review of the documents in the electronic file reveals additional evidence related to the issue on appeal, to include ongoing VA treatment records for the Veteran's hypertension, diabetes mellitus, and CAD starting from February 2010.  It is unclear from the most recent April 2013 supplemental statement of the case (SSOC) if the agency of original jurisdiction (AOJ) electronically reviewed these VA treatment records after October 2011.  See November 2011 SSOC.  A waiver from the Veteran for this specific evidence is not of record; a 30-day SSOC waiver was filed in April 2013.  In any event, a review of this electronic evidence shows that the Veteran continued to receive treatment for the three disorders and that his hypertension was well-controlled on medication, facts that were previously established in other treatment records noted as reviewed.  Moreover, these additional records do not suggest a link between the service-connected disabilities and hypertension.  

In sum, such evidence does not materially alter the outcome of the case and is not pertinent to the issue on appeal (i.e., does not have a bearing on the outcome of the appellate issue).  As such, remand for review of these records by the AOJ in the first instance and for the issuance of another SSOC (to the extent this is indeed the case) is not necessary.  38 C.F.R. §§ 19.31, 19.37.


FINDINGS OF FACT

1.  The Veteran's hypertension is not shown to have been caused or aggravated by his service-connected diabetes mellitus or coronary artery disease. 

2.  The Veteran's hypertension was not manifest during service or within one year of separation.


CONCLUSIONS OF LAW

1.  Hypertension is not proximately due to (causation or aggravation) a service-connected disease or injury.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. 
§ 3.310 (2012).

2.  Hypertension was not incurred in or aggravated by service and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, 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.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

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.  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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

The Veteran was provided all required VCAA notice in an April 2007 letter, to include the requirements for establishing service connection on a secondary basis, prior to the initial adjudication of the claim in August 2007.

The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained.

The Veteran's written statements are also of record.  The Veteran was also afforded an opportunity to present testimony at a hearing before the Board.  As discussed above, the Board was unable to produce a transcript of the proceeding, and the Veteran did not reply to the subsequent letter affording him the opportunity to appear for another hearing.  As such, the Board finds that the duty to assist the Veteran has been met in this regard.

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.

In addition, the Veteran was afforded two VA examinations in connection with his claim, including one following the Board's remand in November 2012.  The Board finds that the VA examinations were adequate, in that they were conducted by a medical professional who reviewed the claims files, solicited history from the Veteran, and performed a thorough examination.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Moreover, the Board has reviewed the report of the March 2013 examination and finds that this opinion provides adequate medical evidence to decide the claim and substantially complies with the requirements articulated in the remand request.  See D'Aries v. Peake, 22 Vet. App. 97 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  Bernard v. Brown, 4 Vet. App. 384 (1993).

Legal Principles

As an initial matter, the Board notes that the Veteran's DD-214 shows that he is in receipt of two Overseas Service Bars and the Army Commendation Medal, which are consistent with service in a combat zone.  In this case, however, the Veteran is not claiming that his hypertension was incurred in service or is related to combat exposure.  Therefore, the provisions of 38 C.F.R. § 1154(b) are not applicable, and concerns as to whether the Veteran engaged in combat with the enemy are likewise not for consideration.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).

Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

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.  If chronicity in service is not established for a chronic disease as enumerated for VA compensation purposes, to include hypertension, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Analysis

As an initial matter, the Veteran does not assert that his hypertension manifested in service or for many years thereafter.  See, e.g., VA examination reports of history, May 2007, March 2011 (heart examination).  Rather, he asserts that his hypertension is secondary to his service-connected diabetes or, alternatively, his CAD.  See, e.g., March 2007 claim; July 2008 substantive appeal (VA Form 9).  However, because the RO considered entitlement to service connection on a direct basis, the Board will do so as well to prevent any prejudice to the Veteran. 

VA regulations provide that 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.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

A review of the Veteran's service treatment records shows no in-service complaints, treatment, or diagnosis of hypertension.  During the March 1969 enlistment examination, the Veteran denied any history of high or low blood pressure; on examination, his blood pressure was recorded as 110/68.  During the December 1971 separation examination, his blood pressure was recorded as 110/60, and he signed a statement that he was in good health.  In both examinations, his heart was found to be "normal."

As discussed in greater detail below, a review of the post-service medical evidence shows that the Veteran received treatment for diabetes mellitus, CAD, and hypertension from a combination of private and VA treatment providers.  While these records show ongoing treatment, they do not provide an opinion on causation or aggravation of hypertension for either diabetes mellitus or CAD.

The Veteran was diagnosed with diabetes mellitus in November 2006 by his private physician, Dr. T.J. (initials used to protect privacy).  At that time, blood pressure was measured as 136/84.

In his December 2006 original claim for compensation, the Veteran indicated that his diabetes mellitus began in November 2006; this was the only disorder claimed for service connection at that time.

On follow-up examination for diabetes mellitus in January 2007, blood pressure was 138/88; the assessment was hypertension, and the Veteran was started on blood pressure medication.

A March 2007 private treatment record from the Veteran's cardiologist's office, Dr. D.K. shows a diagnosis of CAD, secondary diagnosis of diabetes mellitus, for which he underwent angioplasty with stent placement that month; he would again undergo this procedure in July 2010.

In a March 2007 claim, the Veteran alleged that his hypertension and heart disorder were secondary to his diabetes.

VA treatment records from May 2007 to September 2012 show that the Veteran received ongoing treatment for his diabetes mellitus, CAD, and hypertension from both VA and private providers.  A November 2009 VA treatment record shows that the Veteran's hypertension was uncontrolled and that he had not adjusted his medication dose as directed by his doctor; however, beginning in June 2010, the VA treatment records show that the Veteran's hypertension was well-controlled with medications.  Neither these records nor the private treatment records reflect a finding of diabetic nephropathy.

The Veteran was afforded a VA examination in May 2007, during which he reported that he had no awareness of ever having high blood pressure prior to the time of diagnosis of diabetes mellitus and was unaware of any renal complications.  The examiner noted that the Veteran was diagnosed with diabetes mellitus and hypertension in November 2006 and CAD in early 2007; the blood pressure measurements of record in November 2006 and January 2007 were noted to be diagnostic evidence of pre-hypertension.  On examination, blood pressure measured 142/90, 142/88, and 142/90.  The diagnosis included diabetes mellitus, CAD, and hypertension (inadequately controlled).  The examiner opined that the Veteran's CAD was not caused or aggravated by his diabetes mellitus; however, he offered no opinion with regard to his hypertension.

In August 2007, the Veteran was granted service connection for diabetes mellitus associated with herbicide exposure.

In written opinions dated October 2007 and October 2008, Dr. T.J. indicated that the Veteran's diabetes mellitus was the underlying case of several of his disorders, to include CAD; hypertension was not listed.

In a written opinion dated July 2008, Dr. D.K. indicated that it was possible that the Veteran's diabetes contributed significantly to the development of his CAD.

In the July 2008 substantive appeal (VA Form 9), the Veteran stated that his hypertension was due to his diabetes without further explanation.

In an October 2008 VA treatment record, the Veteran reported that he was diagnosed with hypertension around the time of his diabetes mellitus diagnosis in November 2006.
In September 2011, the Veteran was granted service connection for CAD associated with herbicide exposure.

In a December 2011 written brief, the Veteran's representative argued that a link existed between hypertension and diabetes based on cited medical literature showing a high rate of hypertension in individuals with diabetes.  The representative also indicated that diabetic nephropathy may or may not develop in an individual patient even after many years of hypertension.

In a July 2012 email, the Veteran's treating VA physician, Dr. T.F., opined that hypertension and diabetes mellitus likely contributed to his CAD, as they were considered risk factors for CAD; however, he did not address whether the Veteran's CAD caused or aggravated his hypertension.

In response to the Board's November 2012 remand, the Veteran was afforded a VA examination in March 2013, during which he again reported his history of diagnosis of hypertension around the same time as the diabetes mellitus diagnosis in late 2006.  He reported that he was started on medications for both diabetes and blood pressure around the same time; he has remained on blood pressure medications since that time, and that his blood pressure has been well-controlled on a stable medication dose.  There was no history of kidney disease, and he had never been diagnosed with diabetic nephropathy.  A detailed review and notation of relevant medical evidence of record related to diabetes mellitus, CAD, and hypertension was noted in the examination report.  On examination, blood pressure measured 130/70, 128/70, and 124/68.

The examiner opined that it was less likely than not that the Veteran's hypertension was proximately due to or the result of the Veteran's service-connected diabetes mellitus or CAD.  In so finding, the examiner stated that the only physiological mechanism by which diabetes mellitus would cause or aggravate hypertension is if diabetic nephropathy was present, as it was well known that any type of chronic renal (kidney) disease, including diabetic nephropathy, can cause or aggravate hypertension.  However, the Veteran did not have a past diagnosis of diabetic nephropathy, and there were no current laboratory findings on examination which would suggest diabetic nephropathy.  The examiner reached this opinion on the basis of such absence of diabetic nephropathy.  In regards to CAD, the examiner stated that although hypertension was a known risk factor for CAD, review of the medical literature does not show any evidence that CAD causes or aggravates hypertension.  In addition, the examiner noted that the Veteran's CAD was diagnosed after the onset of his hypertension.

Upon careful review of the record, the Board finds that the Veteran's hypertension did not manifest in service or for many years thereafter.  Hypertension was first diagnosed around January 2007, with the earliest pre-hypertensive symptomatology of record in November 2006.  The record also reflects that the Veteran repeatedly reported that his hypertension symptomatology began in November 2006, at which time he began treatment.  There is also no other lay or medical evidence suggesting a direct relationship between hypertension and service or manifestation of such within one year of separation from service.  Therefore, service connection is not warranted on a direct or presumptive basis, and the remaining consideration is whether hypertension is proximately due to or aggravated by the Veteran's service-connected diabetes mellitus or CAD.

With regard to the medical evidence of record, there is only one competent medical opinion addressing the etiology of the Veteran's hypertension in relation to his service-connected diabetes mellitus and CAD on a secondary basis.  The March 2013 VA examiner determined that it was less likely than not that the Veteran's hypertension was caused or aggravated by either the Veteran's diabetes mellitus or CAD, a finding against the claim.  As the VA physician gave detailed reasons for the opinion, an opinion based on the examination findings, a review of the claims file and VA electronic patient file (CPRS), and an accurate characterization of the evidence of record, this opinion is entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

The Board notes that the private medical opinions of record discussed above link the Veteran's CAD to his diabetes, but none discuss the relationship between his hypertension and either CAD or diabetes.  The VA physician Dr. T.F opined that the Veteran's CAD may be, in part, due to his hypertension and noted that hypertension is a risk factor for CAD; however, he did not address whether the Veteran's CAD caused or aggravated his hypertension.

The Board has also considered the Veteran's lay statements of record.  The Veteran is certainly competent to report as to the observable symptoms he experiences, such as an onset of his diabetes mellitus, CAD, and hypertension symptoms, and their history.  Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, competence must be distinguished from probative weight.  In regard to the Veteran's general statement that his hypertension is due to his diabetes mellitus, the Board finds that there is no competent evidence of record to support this general statement.

The Board has also considered the Veteran's representative's assertion as to a link between hypertension and diabetes (December 2011 brief), based on cited medical literature showing a high rate of hypertension in individuals with diabetes.  While the Board acknowledges this submission, there is no competent evidence of record showing that this general statement of a potential link applies to the Veteran's specific case.  As such, the Board affords limited probative value to these statements on the issue of a claimed etiology.

In addition, the question of whether the Veteran's hypertension is related to his diabetes mellitus, or alteratively his CAD is a complex medical matter as to an internal medical process that is of the type that the courts have found to be beyond the competence of lay witnesses.  Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer").  As such, while the Board again acknowledges the Veteran's contentions, his general statement as to etiology is in conflict with the VA examiner's opinion afforded significant probative weight, as discussed above, and there is no other competent evidence to support such a finding.  In reaching this determination, the Board has specifically considered the guidance provided in Jandreau as to whether the lay evidence of record in this case is competent and sufficient to establish a finding on the question of etiology.  Although the Veteran accurately reported a current diagnosis of hypertension supported by the remainder of the record, he is not competent, in this case, to establish etiology of the disorder.  In this regard, the Veteran's lay statements did not support a later opinion as to etiology, nor has he reported a contemporaneous opinion provided as to etiology.  See Jandreau, 492 F.3d at 1376-77 (determination of whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board, to include consideration of enumerated factors).

Considering the record in sum, the Board finds that evidence in this case weighs against the Veteran's claim, as it does not show a link (causation or aggravation) between his hypertension and his service-connected diabetes mellitus or CAD.  All elements of service connection cannot be met.  Coburn, 19 Vet. App. at 431.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied.  Gilbert, 1 Vet. App. 49, 53.


ORDER

Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus or coronary artery disease (CAD) is denied.


____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs