Citation Nr: 1320100 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 09-13 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus and/or coronary artery disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1971, including service in the Republic of Vietnam. He died in April 2011; the appellant is the Veteran's surviving spouse and she has been substituted by the RO to complete the processing of the deceased Veteran's appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Board dismissed the Veteran's appeal in June 2011 due to the Veteran's death during the pendency of the appeal. The Board's dismissal did not affect the right of an eligible person to file a request to be substituted as the appellant, pursuant to the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121A (West Supp. 2010), substitution in case of death of a claimant who dies on or after October 10, 2008). See 76 Fed. Reg. 8,666 -01 (Feb. 15, 2011) (Proposed Rule). In December 2011, the RO granted the request of the appellant, as the surviving spouse of the Veteran, to be substituted as the claimant in this matter to complete the processing of the deceased Veteran's claims. In January 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in March 2013, and in April 2013, the Board informed the appellant that it had requested a specialist's opinion in conjunction with the adjudication of her appeal, provided her a copy of that opinion and indicated that she was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. Although to date the appellant has not responded, in June 2013 her representative, The American Legion, acknowledged the VHA specialist's opinion and offered argument in support of the appellant's claim. Accordingly, the Board will proceed with the consideration of this case. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam era. 2. Hypertension was not manifested in service or in the first year following the Veteran's discharge from active duty; was not caused by or permanently worsened by his service-connected type II diabetes mellitus and/or coronary artery disease; and it is not shown to be related to his service, to include as due to herbicide exposure therein. CONCLUSION OF LAW Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a 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). Proper notice from 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 expect to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, 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. Id. at 486. In this case, the VCAA duty to notify was satisfied by way of a January 2008 letter sent to the Veteran in January 2008. The January 2008 letter was sent prior to the initial RO decision in this matter. The January 2008 letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content as to the appellant's claim. The January 2008 letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination. VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records and post-service private treatment records, including Social Security Administration (SSA) records. The Veteran had a VA examination in May 2008, and in January 2013 the Board sought an advisory medical opinion from the VHA; such opinion was secured in March 2013. As the March 2013 VHA opinion was based upon an accurate understanding of the disability at issue, as well as the Veteran's documented medical history, based upon review of his claims file, the Board finds it is adequate for the purposes of deciding the claim on appeal decided herein. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to develop evidence is required. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Dingess/Hartman, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). B. Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases (to include hypertension) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post service (one year for hypertension). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 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). 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. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by the veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodrigues, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. (millimeters of mercury) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Code 7101, Note (1). The appellant asserts the Veteran's hypertension is related to his active duty service, to include as secondary to herbicide exposure, and/or secondary to his service-connected type II diabetes mellitus or service-connected coronary artery disease. On January 1967 service enlistment examination, the Veteran's blood pressure was 128/76. A separate January 1967 treatment record found the Veteran's blood pressure was 120/70. On January 1970 service separation examination, the Veteran's blood pressure was 124/78. The Veteran's service treatment records are silent for complaints, findings, treatment, or diagnosis relating to hypertension/high blood pressure. Post-service treatment records include a December 2004 Senior Friendly Center report that found the Veteran's blood pressure was 128/73. September 2007 Sarasota Memorial Hospital treatment records note the Veteran's past medical history includes hypertension, coronary artery disease, and diabetes mellitus. It was also noted that diabetes was diagnosed 2 or 3 years ago (i.e., 2004 or 2005). His medications included Lisinopril for hypertension. The instant claim for hypertension was received in October 2007. The Veteran indicated that his hypertension began in 2001. On May 2008 VA examination, the Veteran reported he was diagnosed with hypertension at the same time that he was diagnosed with diabetes mellitus (approximately 2002). His current treatment was noted to be Lisinopril. On physical examination, there was no evidence of hypertensive heart disease. There was no history of chronic renal failure, stroke, or transient ischemic episode. The diagnoses were coronary artery disease, hypertension, and diabetes mellitus. The examiner opined "The [Veteran's] hypertension is not related to diabetes as the [Veteran] states that he was diagnosed with hypertension at the same time he was diagnosed with the diabetes." In January 2013, the Board sought an advisory medical opinion from the VHA as to the nature and etiology of the Veteran's hypertension. In an opinion in March 2013, the reviewing VHA physician opined that the Veteran's hypertension was not at least as likely as not caused by or aggravated by his service-connected diabetes mellitus as they are not causally related. In summary, the physician stated that diabetes per se does not cause hypertension. The physician also opined it was not at least as likely as not the Veteran's hypertension was caused or aggravated by his service-connected coronary artery disease as there is no evidence that coronary artery disease causes hypertension. In contrast, hypertension can cause or aggravate coronary artery disease. The VHA physician further opined that it was not likely the Veteran's hypertension was caused or aggravated by a combined impact of his service-connected diabetes mellitus and coronary artery disease as there is no causal connection between the diseases. As noted above, certain diseases may be service connected on a presumptive basis as due to herbicide (Agent Orange) exposure if manifested in a veteran who served in the Republic of Vietnam during the Vietnam era, based on presumptive exposure to certain herbicide exposure. 38 U.S.C.A. § 1116. Those diseases are listed in 38 C.F.R. § 3.309(e); hypertension is not listed, and it is specifically excluded from the definition of "ischemic heart disease" (which is included in the list). Inasmuch as hypertension is not among the diseases listed in 38 C.F.R. § 3.309(e) (determined to be related to Agent Orange/herbicide exposure), the presumptive provisions of 38 U.S.C.A. § 1116 do not apply, and service connection on a presumptive basis for hypertension as due to Agent Orange exposure is not warranted. The Board observes that extensive scientific studies have produced a limited list of disabilities related to Agent Orange exposure (see 38 C.F.R. § 3.309(e)). There is no evidence that hypertension was manifested in service or in the initial year following the Veteran's discharge from active duty. Indeed, the Veteran does not appear to be alleging that his hypertension was manifested in service or in the initial year following his discharge from active duty. In his October 2007 claim for service connection, he indicated that he was diagnosed with such disability in 2001. And on May 2008 VA examination, he reported it was diagnosed in approximately 2002. September 2007 Sarasota Memorial Hospital treatment records noted that diabetes was diagnosed 2 or 3 years earlier (i.e., 2004 or 2005). Consequently, service connection for this disability on the basis that it became manifest in service and persisted, or on a presumptive basis (for hypertension as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. What remains for consideration is whether in the absence of manifestation in service and/or post-service recurrence of symptoms, the Veteran's hypertension may nonetheless somehow otherwise be related to his service. He did not, and the appellant has not, submitted any medical opinions relating his hypertension to his service/events therein, to include his service-connected type II diabetes mellitus and/or coronary artery disease. The May 2008 VA examiner opined the Veteran's hypertension was not related to his diabetes as the Veteran reported he was diagnosed with hypertension at the same time he was diagnosed with diabetes. Moreover, the March 2013 VHA physician opined that it was not at least as likely as not that the Veteran's coronary artery disease or diabetes, alone or in combination, caused or aggravated his hypertension as there is no causal connection between the diseases. There are no opinions to the contrary. While the Veteran is competent to report that he had symptoms he felt were related to hypertension during his active service, or since service, he is not competent to diagnose his hypertension as related to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). Similarly, the Veteran and the appellant are not competent to provide either a diagnosis or the medical nexus, and the medical opinions from the medical professionals in this case have not related the Veteran's hypertension to his active service, or to his service-connected type II diabetes mellitus and/or coronary artery disease. Thus, the Veteran's and the appellant's lay assertions are not competent or sufficient. See Jandreau, 492 F.3d at 1377. The weight of the competent medical evidence demonstrates that the Veteran's hypertension began many years after his active service, was not caused by any incident of service, and is not proximately due to or the result of his service connected type II diabetes mellitus and/or coronary artery disease. The Board therefore concludes that the preponderance of the evidence is against service connection, that is neither direct nor secondary service connection for hypertension is warranted. ORDER Service connection for hypertension is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs