Citation Nr: 1320960 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 04-14 659 ) 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, or post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from September 1964 to September 1967. This matter is before the Board of Veterans Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes this issue has been remanded on several occasions. In February 2007 the Board remanded this matter for additional development, to include obtaining records from the Social Security Administration (SSA) and affording the Veteran a VA examination. In May 2010 the Board again remanded this matter for development because the VA examination was provided before associating the SSA records with the file, contrary to remand instructions. Thus, the matter was remanded for an additional VA examination after reviewing SSA records. In August 2011 the Board found the VA examination did not provide an adequate rationale for the conclusions reached, and again remanded this issue for an additional VA examination. The Veteran was provided with a VA examination in September 2011. As such, the Board found the development requested in the August 2011 decision was substantially completed. Stegall v. West, 11 Vet. App. 268 (1998); D'Arie's v. Peake, 22 Vet. App. 97 (2008). However, this opinion did not address whether the Veteran's hypertension was aggravated by his service-connected diabetes or PTSD. Therefore, in October 2012, the Board requested a VHA expert medical opinion. The opinion was provided in January 2013, and this issue is once again before the Board for appellate consideration. FINDING OF FACT The weight of the evidence fails to establish the Veteran's currently diagnosed hypertension either began during or was otherwise caused by his military service, to include as secondary to his service-connected diabetes mellitus, type II, or post-traumatic stress disorder. CONCLUSION OF LAW Criteria for service connection for hypertension have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for hypertension. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Alternatively, if the chronic disease was shown in service, with manifestations sufficient to identify the disease and sufficient observation to establish chronicity, then subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). VA regulations provide that for the purposes of 38 C.F.R. § 4.104 hypertension means the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm of greater with a diastolic blood pressure of less than 90mm. These conditions must be confirmed by blood pressure readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Service treatment records were reviewed and do not establish the Veteran made any complaint of, or sought any treatment for, hypertension or high blood pressure during his military service. At his September 1964 entrance examination the Veteran's blood pressure was 134/76. In his accompanying Report of Medical History the Veteran indicated he did not have high or low blood pressure. At his September 1967 separation physical the Veteran's blood pressure was 120/80. In his accompanying Report of Medical History the Veteran again indicated he did not have high or low blood pressure. As such, the Board finds the service treatment records fail to establish the Veteran's hypertension began during his military service. Post-service treatment records do not indicate the Veteran made any complaint of or sought any treatment for hypertension or elevated blood pressure for over thirty-five years after he separated from military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). The earliest medical records contained in the record are from May 2003. The Board finds this delay in seeking medical treatment provides probative evidence the Veteran did not experience elevated blood pressure until 2003. In May 2003 the Veteran established treatment at a VA facility. His blood pressure was 215/115 and was noted as elevated. In July 2003 a history of hypertension treated with Atenolol and Hydorchlorothiazide was noted. His blood pressure was 159/90. Treatment records after this point consistently reflect the Veteran's history of hypertension. However, these records do not provide an opinion as to when the Veteran's elevated blood pressure condition began or the etiology of his hypertension. In October 2004 the Veteran was provided with a consultative examination by a private physician. This physician indicated that the Veteran had hypertension since 2003. As such, the Board finds the post-service treatment records of evidence fail to establish the Veteran had hypertension before 2003, over thirty-five years after he separated from military service. Therefore, the evidence fails to establish the Veteran has experienced elevated blood pressure continuously since his military service, or that he developed hypertension within one year of his separation from military service. The Board notes that in his June 2003 application for benefits and April 2004 written substantive appeal the Veteran asserted that his hypertension was related to his service-connected diabetes. Service connection may be found on a secondary basis in certain instances in which a disability is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). As a lay person, the Veteran is considered to be competent to report what comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise required to provide a complex medical opinion as to the etiology of his hypertension. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Board will now turn to a discussion of whether the medical evidence of record establishes the Veteran's hypertension is otherwise related to his military service, to include as secondary to his service-connected diabetes or PTSD. In August 2007 the Veteran was provided with a VA examination. The examiner noted the Veteran was diagnosed with diabetes and hypertension in 2003. The examiner opined his blood pressure and diabetes were not controlled despite his current medication. The Veteran's blood pressure was noted as 182/94; 170/88; and 158/86. The examiner noted the Veteran was obese and a smoker. The examiner opined the Veteran's hypertension was not due to or casually brought on by his military service. He also opined the Veteran's hypertension was not secondary to his diabetes. He explained the Veteran's hypertension was thought to be due to genetic factors: cigarette smoking, obesity, alcoholic excess, and hypercholesterolemia. As discussed above, in a May 2010 decision, the Board found this examination was inadequate because the examiner did not review updated VA treatment records or records from the Social Security Administration, and a new VA examination was requested. In September 2011 the Veteran was provided with an additional VA examination. The examiner reviewed the Veteran's claims file and opined it was less likely than not that his hypertension was incurred in or was caused by his military service. The examiner explained that the Veteran's hypertension was not documented until 2003. The examiner also opined it was less likely than not that the Veteran's diabetes caused his hypertension since they were both diagnosed at approximately the same time. The examiner continued, "It is pure speculation as to whether the hypertension was aggr[a]vated by diabetes. There is no [way] to evaluate or measure this." In January 2013 the Veteran was provided with a VHA medical expert opinion. The physician provided a detailed summary of the Veteran's prior history, indicating he was familiar with the Veteran's history. The physician noted that "It is true that patients with Type II diabetes mellitus are more frequently hypertensive than those who are not diabetic. There is no evidence to suggest, however, that Type II diabetes by itself causes hypertension." The physician explained the two conditions frequently occur in patients with several other risk factors, including obesity and sleep apnea, noting the Veteran had both conditions. The examiner also noted the Veteran's father had a history of hypertension. Based on the foregoing the physician opined it was less likely than not that the Veteran's hypertension began during active service or was related in a causative fashion to his service-connected type II diabetes mellitus. He also opined it was less likely than not that the Veteran's hypertension increased in severity beyond its natural progression due to the Veteran's diabetes. The physician also opined that it was less likely than not that the Veteran's hypertension was related in a causative fashion to his service-connected PTSD. The physician explained there was no evidence that PTSD caused chronic, sustained hypertension. He also opined it was less likely than not that the Veteran's hypertension increased in severity beyond its natural progression due to the Veteran's service-connected PTSD. He explained the Veteran's hypertension was not difficult to manage and his PTSD was not severe or resistant to therapy. The Board finds this VHA report provides highly probative evidence against the Veteran's claim. The physician carefully reviewed the Veteran's previous history, addressed each question with a clear, unequivocal opinion, and provided a rationale for each of his opinions. As such, the Board finds this VHA opinion is adequate and provides highly probative evidence that the Veteran's hypertension is not proximately due to, or the result of, his military service or his service-connected diabetes or PTSD. Based on all of the foregoing, the Board finds the weight of the evidence of record fails to establish the Veteran's currently diagnosed hypertension either began during or was otherwise caused by his military service. Service treatment records do not establish the Veteran had elevated blood pressure during military service, and post-service treatment records do not reflect the Veteran was diagnosed with hypertension until more than twenty-five years after he separated from military service. Additionally the weight of the medical evidence of record does not otherwise relate the Veteran's current hypertension to his military service. As discussed above, although the Veteran has consistently asserted his hypertension is due to his service-connected diabetes the Veteran lacks the medical training and expertise required to provide a complex medical opinion as to the etiology of his current hypertension. Moreover, the competent medical expert opinion fails to establish the Veteran's current hypertension was the result of, or otherwise aggravated by, his service-connected PTSD or diabetes mellitus, type II, and the record does not contain any medical opinions to the contrary. Therefore, the Board finds the Veteran's claim for service connection for hypertension is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in July 2003, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The Board notes the letter did not advise the Veteran of the criteria for establishing a disability rating or effective date of an award. However, based on the foregoing the Veteran's claim for service connection was denied, and no disability rating or effective date will be assigned. As such, the Board finds the failure to provide notice of these elements was harmless error. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records and records from the Social Security Administration. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board notes that, as discussed above, several of these examinations were inadequate. Additionally, in a September 2012 written Informal Hearing Presentation the Veteran's representative specifically objected to the September 2011 VA examination report asserting the repot was insufficient for evaluation purposes and requested a new VA examination. However, as also discussed above, the Board agreed the September 2011 examination report was insufficient and for this reason requested a VHA medical expert opinion in January 2013. As discussed above this medical expert was familiar with the Veteran's previous medical history and provided a clear rationale for his opinions. As such, the Board finds the January 2013 VHA medical expert opinion was adequate. Furthermore, the Board finds no additional testing was required as the medical expert's adequate nexus rationale primarily relied upon the Veteran's pre-existing risk factors and familial history, instead of the result of any recent medical testing. Additionally, the Veteran and his representative were provided with a copy of this opinion and did not voice any objection to the VHA opinion. As such, the Board finds the January 2013 VHA expert opinion was adequate and no additional medical testing was required. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for service connection for hypertension, to include as secondary to his service-connected PTSD or diabetes mellitus, type II, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs