Citation Nr: 1319942 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 08-25 704 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. REPRESENTATION Appellant (the Veteran) is represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from January 1966 to December 1967. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the RO in Waco, Texas. In July 2008, the Veteran testified at a hearing conducted by RO personnel. In June 2011, the Veteran testified at a Board hearing conducted via videoconference by a Veterans Law Judge who has since retired from the Board. The Veteran was offered another hearing to be conducted by the Veterans Law Judge who would decide his appeal; however, in April 2013, he responded that he did not wish to appear at another hearing. Transcripts of both hearings are of record. In August 2011, the Board remanded this issue to the RO for additional evidentiary development. It has since been returned to the Board for further appellate action. In addition to remanding this issue, the Board also granted reopening of a claim seeking service connection for bilateral hearing loss. The Board then remanded the reopened issue, as well as issues of entitlement to service connection for tinnitus and sleep apnea, to the RO. In a December 2012 rating decision, the RO granted service connection for sleep apnea, bilateral hearing loss, and tinnitus, resolving the appeal as to those issues. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. Hypertension is listed among the diseases for which the presumption of service connection for certain chronic diseases, and the provisions regarding chronicity in service and continuity of symptomatology after service, must be considered. 3. Symptoms of hypertension were not chronic in service. 4. Hypertension did not become manifest to a degree of 10 percent within a year of service separation. 5. Symptoms of hypertension were not continuous after service. 6. The Veteran's current hypertension is not related to service, and is not related to the Veteran's service-connected diabetes mellitus. CONCLUSION OF LAW Hypertension was not incurred in service and is not presumed to have been incurred in service; hypertension is not proximately due to, a result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 CAVC 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). Certain specific conditions are considered chronic diseases under VA Law. These include cardiovascular-renal disease, including hypertension. 38 C.F.R. § 3.309(a). Where hypertension is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and hypertension is manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order for hypertension to be considered manifested to a compensable degree, the evidence must show diastolic pressure of predominantly 100 or more, or; systolic pressure of 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). See also the CAVC's discussion of this subject in Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). Under the regulation in effect at the time the Veteran filed his claim, service connection could be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (as in effect prior to October 10, 2006). That regulation was interpreted to permit service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Allen, 7 Vet. App. at 448 (1995). In rendering a 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). Analysis The Veteran is seeking service connection for hypertension on the basis that it was caused by his diabetes mellitus, which is a service-connected disability associated with herbicide exposure in Vietnam. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that symptoms of hypertension were not chronic in service, hypertension did not become manifest to a degree of 10 percent within a year of separation, symptoms of hypertension were not continuous since service separation, and the Veteran's current hypertension is not related to service, and is not related to the Veteran's service-connected diabetes mellitus. Service treatment records reveal no treatment for hypertension. The Veteran's blood pressure was within the normal range on every occasion it was measured. The Veteran's blood pressure at service entrance was 110/70. When treated for epistaxis on January 26, 1966, the Veteran's blood pressure was 110/80. When examined at service separation in December 1967, the Veteran's heart and vascular system were clinically normal, and his blood pressure was 106/61. On a report of medical history at the time of the examination, the Veteran reported no history of high or low blood pressure. Thus, to the extent that there were any symptoms of hypertension in service, the lack of any clinical indications of hypertension, despite several measurements, weighs against a finding of chronicity. The Veteran filed a claim for service connection shortly after service separation in April 1968; however, he did not include hypertension as a claimed disability. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, an individual takes action regarding other claims, it is reasonable to expect that he is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure where he believed himself entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting, than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for hypertension, when viewed in the context of his action regarding other claims, is interpreted as indicative of the lack of symptomatology at that time. This evidence weighs against chronicity in service, as well as continuity of symptomatology after service. The Veteran was examined in regard to the April 1968 claim in June 1968 and his blood pressure was 110/61. The Veteran did not raise hypertension as a claimed service-connected disability until the current claim in September 2006. The initial diagnosis of hypertension appears in a November 2003 VA treatment record, more than 35 years after service separation. The Veteran began seeking treatment at the VA Medical Center only a few months earlier, in July 2003. His complaint at the initial treatment was heartburn, and was unrelated to symptoms of diabetes mellitus or hypertension. While a diagnosis of hypertension was not rendered until November 2003, the blood pressure reading in July 2003 was similar to that recorded in November 2003 (131/89 in July, 133/85 in November). The precise date of onset of hypertension is not known; and, it is at least possible that a diagnosis of hypertension would have occurred sometime earlier than November 2003, if the Veteran had been evaluated sooner. However, that still leaves a substantial period intervening service separation and the initial symptoms of hypertension. Here, the normal findings in service and shortly after service, combined with the extended period without complaint or treatment, weigh against a finding of continuity of symptomatology after service or manifestation of hypertension to a compensable degree within one year of service separation. Regarding the Board's findings that there was neither chronicity in service nor continuity of symptomatology after service, it is important to note that the Veteran does not specifically contend that he had hypertension in service or within the presumptive period, or that symptoms were continuous after service. His claim has been based on his exposure to Agent Orange and an asserted relationship to diabetes mellitus. There is also no medical opinion that purports to relate hypertension directly to service. In fact, a VA opinion was obtained based on file review in October 2011. The reviewing VA clinician opined that hypertension was not directly related to service, and this was essentially based on the normal clinical findings in the service treatment records. As the elements necessary for direct service connection and presumptive service connection are not met, the Board concludes that service connection for hypertension on direct and presumptive bases is not warranted. The Board's discussion now turns to the asserted secondary service connection theory. The Veteran was afforded a VA examination in November 2006. The examiner reviewed the claims file and noted that the Veteran had been told that he had impaired glucose tolerance for 4 to 5 years and had been started on Metformin in July 2006. The examiner noted that the Veteran had a history of hypertension for 3 years. The examiner opined that hypertension was less likely than not secondary to diabetes mellitus. The rationale was that the Veteran was diagnosed with impaired glucose tolerance for several (4-5) years and he had less than one year duration of diabetes mellitus. The Veteran's private physician, A.A., M.D. submitted a letter in July 2008. A.A. noted that he had seen the Veteran since March of that year. A.A. noted that the Veteran had diabetes mellitus as a result of Agent Orange exposure, and "[s]ubsequently" he was found with hypertension "which is well known to coincide with diabetes." A second VA opinion was obtained in October 2011. The reviewing VA clinician opined that hypertension was not caused by or a result of diabetes, and was not aggravated by diabetes. The rationale was that the diagnosis of diabetes mellitus was in 2006, and the onset of hypertension was approximately three years prior. Therefore hypertension was diagnosed before and antedates diabetes mellitus. The VA clinician also noted that there was no evidence of nephropathy and therefore the hypertension also could not be aggravated by diabetes. It is the Board's responsibility to evaluate the evidence and to assign each report or opinion its due probative weight. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In reviewing the evidence, the Board is free to favor one medical opinion over another if the Board provides an adequate statement of reasons or bases. Id.; see also 38 U.S.C. § 7104(d)(1). The Board acknowledges that each opinion on this question is flawed to some extent. The October 2011 opinion does not appear to address the elevated glucose readings that predated the 2006 diagnosis of diabetes. While the November 2006 opinion does address those readings, and appears to discount them in terms of causation of hypertension, the rationale provided is quite minimal. In any event, the basis for discounting the high glucose readings is not explained. Despite these flaws, the Board finds that the October 2011 opinion is the most persuasive regarding nexus. In so finding, the Board notes that the Veteran submitted a record of his collected glucose readings in July 2008. Those show normal glucose readings up until October 4, 2004. In fact, a November 5, 2003 reading was in the normal range. The Veteran was diagnosed with hypertension on November 19, 2003. The Board has acknowledged a possible earlier onset of hypertension on the basis that the Veteran only initiated regular treatment at VA in July 2003, and thus there is a silent record prior to that date; however, there appears no possibility of a later onset of hypertension than the November 2003 diagnosis. This means that the onset of hypertension predates not only the diagnosis of diabetes, but also the elevated glucose readings. Thus, the failure of the October 2011 opinion to address the elevated glucose readings prior to the initial diagnosis of diabetes mellitus does not undermine the opinion. The treatment records show that the diagnosis of hypertension predates the elevated glucose readings by almost 1 year. Prior to that, the glucose readings are normal. The letter written by A.A., although it certainly endorses a coincidence between hypertension and diabetes, does not actually provide an opinion regarding the etiology of hypertension in this case. Asserting that two conditions coincide does not imply causation or aggravation of one by the other. This is an inconclusive statement. The CAVC has repeatedly and consistently rejected medical opinions raising only a possibility of medical nexus as being insufficient to establish nexus. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2000); Beausoleil v. Brown, 8 Vet. App. 459 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In essence, a medical opinion that is not conclusively stated, but asserts only the possibility of a relationship, or in this case, a coincidence, is not probative evidence, as it does not tend to prove the question at hand. The Board also notes that A.A. mistakenly reported that the onset of hypertension as subsequent to the onset of diabetes mellitus. As discussed above, the record does not support this, but shows that the diagnosis of hypertension predated the diagnosis of diabetes mellitus and even predated the elevated glucose readings by almost 1 year. A.A. is presumed to possess competence in medical matters, and it is freely acknowledged that the Board does not possess competence in medical matters. If A.A. based his assertion that diabetes predated hypertension on an understanding of medical matters not reflected in the record, he did not assert or imply such a finding. The Board is therefore left with the record, which directly contradicts his assertion. Thus, to the extent that this is an opinion, it based on an inaccurate history. These deficiencies reduce the probative weight of this evidence. The Veteran believes that his hypertension was caused by his diabetes. While lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), establishing the etiology of hypertension falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran's assertion is therefore not competent evidence. In addition to the letter from A.A. discussed above, the Veteran testified that Dr. J. had treated him and told him that his hypertension was related to diabetes mellitus. He testified that Dr. J. had since retired and he had not been able to get his records because it had been more than five years. While the Veteran is competent to relate an opinion told to him by a clinician, the Veteran's account provides little detail. In particular, it sheds no light on the chronology of onset of the two conditions. As discussed above, it would appear that, not only the diagnosis of hypertension predated the diagnosis of diabetes mellitus, but symptoms of hypertension were present in the record prior to the earliest symptoms of diabetes mellitus. This chronology was the basis for the October 2011 VA opinion finding that hypertension was not caused or aggravated by diabetes mellitus. Thus, while the Veteran's report may be competent evidence, it is not as persuasive as the October 2011 VA opinion, and it is therefore accorded less probative weight. The Board finds that the October 2011 VA opinion is the most persuasive opinion of record regarding the etiology of the Veteran's hypertension. It is stated conclusively, and it is supported by a rationale that is consistent with the record. The Board therefore finds that the weight of the evidence demonstrates no relationship, either through causation or aggravation, between the service-connected diabetes and the Veteran's hypertension. Accordingly, service connection for hypertension on the asserted secondary basis is also not warranted. In reaching the conclusions that service connection is not warranted on direct, presumptive, or secondary bases, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the Veteran submitted his claim for service connection for hypertension in September 2006. He was sent a letter in October 2006 which advised him of the information and evidence necessary to substantiate his claim. That letter also advised him as to how disability ratings and effective dates were assigned in the event of a successful claim seeking service connection. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Since the October 2006 letter was sent to the Veteran prior to the initial adjudication of the claim in April 2007, there exists no error in the timing of this notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In short, VA has complied with its duty to notify the Veteran in this case. When conducting a hearing, a VA hearing officer - to include a Veterans Law Judge - must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103 (2012). The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Here, during the Board hearing, the Veteran verified that all evidence in his possession had been submitted. The Veteran's assertions regarding the etiology of his hypertension were discussed in detail, as well as the history of symptoms and treatment. Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's written assertions and personal hearing testimony. As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's August 2011 remand instructions in that the RO obtained outstanding VA treatment records from January 2007 to the present. The RO also obtained an opinion based on review of the claims folder as to whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any identified current hypertension is directly related to the Veteran's military service, or has been caused by his service-connected diabetes mellitus, or has been aggravated (i.e., permanently increased in severity) by his diabetes. In fact, the Veteran was afforded two VA examinations to address the etiology of his hypertension. The Board finds that the most recent September 2011 examination is adequate because it was performed by a medical professional based on a review of claims file. The resulting opinion is accompanied by a rationale that is consistent with the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). As noted above, the opinion does not appear to address elevated glucose readings that predated the 2006 diagnosis of diabetes. However, this does not render the opinion inadequate because the elevated glucose readings post-date the diagnosis of hypertension by almost 1 year. Thus, there is no apparent prejudice resulting from this omission. ORDER Service connection for hypertension is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs