Citation Nr: 1318518 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-18 884 ) 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, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from February 1956 to January 1959 and from March 1959 to August 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The case is under the jurisdiction of the VA RO in Waco, Texas. The Veteran testified before an Acting Veterans Law Judge (AVLJ) at a hearing in April 2012. A transcript of that hearing has been associated with the claims file. In October 2012, the Board issued a decision reopening the Veteran's claim for entitlement to service connection for hypertension and remanded the matter for additional development. Subsequently, the Veteran was informed in an April 2013 letter from the Board that the AVLJ who conducted his hearing was no longer employed by the Board. The Veteran was offered an opportunity to testify at another hearing and the letter directed that if a response was not received within 30 days it would be presumed that the Veteran did not desire another hearing. See 38 C.F.R. § 20.707 (2012). The claims file does not indicate that the Veteran responded to the April 2013 letter. Therefore, the Board finds that there is no hearing request pending at this time. See 38 C.F.R. § 20.702(e) (2012). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Hypertension was not initially manifested during service or within one year of service and was not proximately caused or aggravated by diabetes mellitus, type II, or other incident of service. CONCLUSION OF LAW Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 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, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letter dated in February 2009 and July 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence and information pertaining to the claim. He was also advised of the information and evidence that VA would attempt to obtain on his behalf. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The Board notes that certain records from the Darnall Medical Center, specifically from January 1988 through December 1989, have been determined to be unavailable. The Veteran was informed that VA was unable to obtain these records in a February 2012 letter and indicated during the April 2012 Board hearing that he did not have access to any of those records. The Veteran has submitted certain private treatment records. The Veteran has at no time otherwise referenced any other outstanding records that he wanted VA to obtain. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided a VA examination in April 2009. In addition, the Board remanded the claim in October 2012 to obtain an additional VA examination. That examination was provided in January 2013. Both examiners diagnosed hypertension, but concluded that the hypertension was not caused by the Veteran's service-connected diabetes mellitus. In addition, from the context of the opinion, the January 2013 examiner also concluded that the diabetes mellitus had not aggravated the hypertension. These opinions were based on review of the claims file, interview of the Veteran, and physical examination. The Board, therefore, finds the VA examination reports, particularly the January 2013 VA examination report, to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In reaching that conclusion, the Board recognizes that the opinions of record do not expressly address the issue of entitlement to service connection on a direct basis. The Board concludes that a remand for such consideration is not necessary. As will be discussed in greater detail below, the Veteran was not diagnosed with hypertension until more than 4 years after separation from service, there are no credible reports of continuity of symptomatology from service or other competent lay or medical evidence suggesting a link between the Veteran's hypertension and his military service. Moreover, the October 2012 Board remand did not order that such an opinion be obtained. Therefore, the Board finds that the criteria for obtaining a medical opinion or examination on the issue of direct service connection are not met, and that a remand for another examination or opinion is not necessary. See Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board is not obligated to investigate all possible theories of entitlement, but rather, only as to those theories for which the evidence is sufficient to reach the low threshold necessary to trigger the duty to assist as contemplated by McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006)). Based on the association of VA treatment records, the January 2013 VA examination report, and subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its October 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, to include cardiovascular renal disease (such as hypertension), manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2012). In this case, the Veteran was not diagnosed with hypertension within one year of separation from service. As such, entitlement to service connection on a presumptive basis is not warranted. To establish a right to compensation for a present disability on a direct basis, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2012). 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) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran claims that his hypertension had its onset during military service, as evidenced by high cholesterol and triglycerides during that time period. In the alternative, the Veteran contends that his hypertension was caused or aggravated by his service-connected diabetes mellitus, type II. The Veteran's service treatment records do not include complaints, treatment, or diagnoses of hypertension. During periodic examinations in service, the Veteran was not diagnosed with hypertension and had blood pressure measured at levels that would not constitute a hypertension disability for VA rating purposes. For example, the Veteran had reported readings of 112/70 (January 1962), 110/70 (February 1965), 100/80 (March 1968), 124/80 (March 1970), 130/80 (May 1972), 118/72 (November 1976), 110/70 (August 1983). In each of these circumstances the examiner found the Veteran's vascular system to be normal. In-service treatment records also document similar blood pressure readings during treatment for various unrelated problems. At the time of the Veteran's May 1984 separation examination, he denied a history of high or low blood pressure. Significantly, at the May 1984 separation examination the Veteran's blood pressure was 124/70 and the examiner found his vascular system to be normal. After service, in July 1987, the Veteran's blood pressure was 106/70. In October 1987, the Veteran's blood pressure was 141/86 during treatment for low back pain. At that time, no diagnosis of hypertension was made or repeat testing of the Veteran's blood pressure undertaken. In June 1988, the Veteran suffered a stroke. During treatment for the stroke, blood pressure readings included 184/99 and 148/80. At that time, the Veteran was diagnosed with hypertension. During a July 1989 VA examination, the Veteran had a blood pressure of 140/90. The Veteran subsequently was diagnosed with diabetes mellitus, type II, at some point prior to July 2000, as a private treatment record at that time noted a history of diabetes. The precise date of diagnosis of diabetes mellitus is not of record, but VA and private records from the 1980s make no mention of diabetes mellitus and June 1988 blood test results showed glucose levels within normal limits, while a July 1989 blood test was negative for glucose. That said, during a January 2002 VA examination, the Veteran reported that he had been diagnosed with diabetes mellitus at age 50 (or approximately 1987). Moreover, during an August 2005 VA audiological examination, the treatment provider noted a diagnosis of diabetes mellitus from 1988. During his January 2013 VA examination, the Veteran reported that he was diagnosed with diabetes mellitus in October 1988. The Veteran was afforded a VA examination for his hypertension in April 2009. The examiner noted review of the claims file. The examiner noted that the Veteran was diagnosed with hypertension in 1988 following a pontine stroke. Following physical examination, the examiner diagnosed hypertension, with onset in 1988, which he concluded was associated with the pontine stroke and not related to diabetes mellitus that was not diagnosed until 2000. A January 2012 VA treatment record noted evaluation for possible secondary causes of the Veteran's hypertension. The record discussed the Veteran's heart problems, but did not specifically attribute the hypertension to the heart problems or any other etiology. The Board remanded the claim in October 2012 for an additional opinion to consider aggravation of the hypertension due to the diabetes mellitus. The resulting January 2013 VA examination report noted a diagnosis of hypertension and review of the claims file. The examiner discussed the Veteran's history of a pontine lacunar stroke in June 1988 that was possibly related to hypertension. The Veteran could not recall when he started on medication for his hypertension, but reported that the stroke occurred before his diagnosis of diabetes mellitus in October 1988. Following a physical examination, the examiner concluded that the Veteran's hypertension was less likely than not proximately due to or the result of his service-connected diabetes mellitus, type II. As to rationale for the conclusion, the examiner noted that the hypertension was diagnosed prior to the diabetes mellitus and was likely related to the lacunar infarct. In addition, the available lab work showed excellent control of his diabetes mellitus. As such, the hypertension was most likely renovascular in nature, based on the Veteran's history of heart problems and stroke. Thus, the Veteran has a current diagnosis of hypertension and, as mentioned, is service-connected for diabetes mellitus, type II. As such, the critical question is whether the Veteran's hypertension was caused or aggravated by his diabetes mellitus, or any other incident related to service. Based on the evidence of record, the Board concludes it is not. In reaching that determination, the Board finds the January 2013 VA examination report of significant probative value. The examiner's opinions were based on an interview of the Veteran, his reported medical history, and physical examination. Further, a complete and thorough rationale was provided for the opinions rendered. Specifically, the examiner concluded that the Veteran's hypertension was more likely related to his June 1988 stroke and not caused by his diabetes mellitus because his hypertension manifested and was diagnosed prior to his diabetes mellitus. This conclusion is fully explained and consistent with the evidence of record. As noted above, the Veteran has contended that he was diagnosed with diabetes mellitus in 1987 or 1988, which would be at the same time or even before his diagnosis of hypertension. If true, such a contention would significantly undercut the rationale for the VA examiners' conclusions as to the etiological cause of the Veteran's hypertension. Certainly the Veteran is competent to report a contemporary diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Credibility, however, is an adjudicative and not a medical determination. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the Veteran's current statements as to a diagnosis of diabetes mellitus in 1987 or 1988 are inconsistent with the objective medical record and the Veteran's own contemporaneous statements. In that regard, the Board notes that the Veteran also has reported a diagnosis of hypertension in service, which will be discussed in greater detail below and clearly is not accurate based on the lay and medical evidence of record. Thus, in light of the Veteran's other errors as the date of initial diagnosis his contentions as to the timing of a diagnosis of diabetes mellitus should be subject to some level of scrutiny. Moreover, had the Veteran been diagnosed with diabetes mellitus at or around the time of his June 1988 stroke, the Board finds it reasonable to conclude that he would have brought a claim for entitlement to service connection for diabetes mellitus at the same time that he brought claims for entitlement to service connection for the stroke, hypertension, and other disabilities diagnosed in and around that time period and that he also associated with his military service. Most significantly, however, the Board notes the 1988 and 1989 blood tests that were negative for glucose or showed glucose levels within normal limits. As such, regardless of whether the Veteran is purposely mischaracterizing the timing of his diagnosis of diabetes mellitus or unintentionally doing so, the ultimate conclusion is that any statements regarding a diagnosis of diabetes mellitus in 1987 or 1988 are simply not credible evidence. See, e.g., Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). In reaching that decision, the Board also has considered the case of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), wherein the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. However, this is not a case in which the record is merely silent regarding a diagnosis of diabetes mellitus in 1987 or 1988. Rather, this is a case in which there are diagnostic records showing an insufficient amount of glucose in the blood to warrant a diagnosis of diabetes mellitus, as evidenced by the contemporaneous diagnoses that did not include diabetes mellitus. As to the question of the diabetes mellitus aggravating the Veteran's hypertension, the January 2013 examiner's opinion did not specifically state that the hypertension was not aggravated by the diabetes mellitus. In context, however, it is clear that the examiner's conclusion encompassed aggravation. In that regard, the examiner's rationale included the notation that "Available labwork reveals excellent control of his diabetes" and that it was "Most likely the hypertension is renovascular in nature" based on multiple factors outlined by the examiner. As such, the Board concludes that the examination report clearly concluded that the Veteran's hypertension was not permanently aggravated by his diabetes mellitus, type II. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (holding that although the Board may permissibly draw inferences from the medical evidence, including an overall reading of a VA examination report, any inferences resulting in a medical determination must be independent and cited); see also Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012). As to otherwise granting entitlement to service connection for hypertension on a direct basis, the Board notes that there is no medical evidence linking the Veteran's hypertension, diagnosed more than 4 years after separation from service, to any incident of service. The Veteran conceded during the April 2012 Board hearing that he was unaware of any medical professional opining as to any link between his current hypertension and his military service. The Board also has considered whether service connection would be warranted pursuant to the provisions of 38 C.F.R. § 3.303(b) (2012), based on chronicity and continuity. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board recognizes that hypertension is a chronic disease listed under 38 C.F.R. § 3.309(a) and that the Veteran has claimed that high cholesterol and triglycerides shown in service demonstrate that hypertension should have been diagnosed at that time. As discussed above, however, the Veteran's blood pressure readings during service were consistently below the level that would warrant a diagnosis of hypertension, including at the time of separation and up to more than 3 years after separation. Of equal significance, the Veteran has not reported a continuity of symptomatology from service to the time of his diagnosis of hypertension in June 1988 that would permit the granting of entitlement to service connection under the provisions of 38 C.F.R. § 3.303(b). To the extent that the Veteran's contentions can be construed as claims of continuity of symptomatology, the Board finds the contentions significantly outweighed by the blood pressure reading at the time of separation and the first post-service blood pressure reading, in July 1987 (or more than 3 years after separation from service), that both were within normal limits. As such, service connection based on the provisions of 38 C.F.R. § 3.303(b) is not warranted. The Board has considered the general reports of the Veteran that his hypertension was caused or permanently aggravated by his service-connected diabetes mellitus, or otherwise as a direct result of his military service. In that regard, individuals can attest to factual matters of which he or she has first-hand knowledge, such as dizziness, and the Veteran's assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, the etiology of hypertension that was diagnosed prior to diabetes mellitus and multiple years after separation from service falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In light of the foregoing and the complexity of attributing hypertension to diabetes mellitus or some other incident associated with his military service, including high cholesterol and/or triglycerides, (and particularly without credible reports of a continuity of problems that could be associated with the hypertension), the Board affords the Veteran's contentions no probative weight. In conclusion, the January 2013 VA examiner clearly reviewed the Veteran's medical history, interviewed the Veteran, and offered a detailed rationale for the opinion. The Board finds this the most probative evidence of record. There is no medical evidence of record suggesting a link between the Veteran's hypertension and his service-connected diabetes mellitus or any incident directly related to service and the Veteran's contentions in that regard are not competent evidence. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and 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). The appeal must therefore be denied. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs