Citation Nr: 1322217 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-18 672A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from August 1967 to June 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from September 2008 and January 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board subsequently remanded the case in October 2011 for further evidentiary development and adjudication. The Board instructed the agency of original jurisdiction (AOJ) to request any additional private records from the Veteran, provide the Veteran with a VA examination, and then re-adjudicate the claim. The AOJ requested the identified information from the Veteran but received no additional evidence or information, and scheduled the Veteran for VA examination, which was conducted in December 2011. The Veteran was provided a supplemental statement of the case (SSOC) in August 2012, in which the AOJ again denied the Veteran's service connection claim. VA then obtained a VHA medical expert opinion in January 2013. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in May 2011. A transcript of the hearing has been associated with the Veteran's claims file. FINDING OF FACT The Veteran does not have hypertension that has been caused or made worse by service-connected diabetes mellitus. CONCLUSION OF LAW The Veteran does not have hypertension that is proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through an April 2008 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the April 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned April 2008 notice letter. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the April 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment records, as well as records of his post-service treatment with private and VA treatment providers, have been associated with the claims file. The Veteran also underwent VA examinations in September 2008, January 2009, and December 2011, reports of which are of record. In addition, VA obtained a VHA medical specialist's opinion in January 2013 concerning the Veteran's claim. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, despite deficiencies in the VA examinations, the Board finds that the January 2013 VHA expert opinion is adequate, as it predicated on a thorough consideration of the medical records in the claims file and the Veteran's reported history. The opinion considers all of the pertinent evidence of record, to include statements given by the Veteran throughout the appellate period, and provide a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran and his representative have both submitted written argument, and the Veteran and his wife testified before the undersigned Veterans Law Judge at a hearing in May 2011. Otherwise, neither the Veteran nor his representative has alleged that there are any outstanding records probative of the claim on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Regarding his service connection claim, the Veteran has contended that he has developed hypertension secondary to his service-connected diabetes mellitus. Service connection may be granted for a disability that is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). This includes a disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Relevant medical evidence consists of records of the Veteran's post-service treatment at both private and VA facilities and VA examinations conducted in September 2008, January 2009, and December 2011. In addition, VA obtained a VHA medical specialist's opinion in January 2013 concerning the Veteran's claim. Report of the September 2008 examination reflects the Veteran's report that he was diagnosed with both diabetes mellitus and hypertension in January 1997 and had been on medication for control of hypertension since that time. The examiner also noted that private treatment records contained within the claims file showed treatment starting in January 1997, with both diabetes mellitus and hypertension diagnosed at that visit. The examiner also noted "copious physician notes" following that initial treatment showing diagnoses and treatment of both diabetes mellitus and hypertension. The VA examiner noted that cardiovascular disease was a possible complication of the Veteran's diabetes mellitus. However, the examiner opined that the Veteran's hypertension was not a complication of his diabetes mellitus because both conditions were diagnosed at the same time. The examiner further opined that the Veteran's hypertension was not worsened or increased in severity by his diabetes mellitus. The examiner noted that the Veteran's hypertension control had over the years been more of a problem than his diabetes mellitus control. The Veteran provided a September 2008 letter from his private treating physician stating that the Veteran had been her patient since January 1997 and that although the Veteran had had intermittently elevated blood pressure readings over the past eleven years, this was "usually thought to be due to decongestants he was taking for chronic sinusitis," and that follow-up examination usually revealed normal blood pressure. The physician further stated that she did not diagnose the Veteran with hypertension until 2007, due to persistently elevated blood pressure at that time. He was first treated with medication for chronic hypertension in May 2007. The Veteran was afforded another VA examination in January 2009 to address questions of causation between his diabetes mellitus and his claimed hypertension. This examiner noted that the Veteran had a history of elevated blood pressure intermittently since 1997, with persistent elevation since May 2007 requiring treatment since that time. The examiner further noted that the Veteran had been diagnosed with diabetes mellitus since 1997. The examiner opined, based reportedly upon careful review of the claims file, that the Veteran's hypertension was not at least as likely as not caused by or a result of his diabetes mellitus. As a rationale for this opinion, the examiner opined instead that the Veteran's complaints of elevated blood pressure correlated with attacks of vertigo and panic attacks leading to eventual persistent hypertension. The Veteran in March 2009 also submitted a page of general medical information indicating that diabetes was a risk factor in developing hypertension because diabetes could predispose a patient to development of atherosclerosis, or hardening of the arteries, and this atherosclerosis could in turn cause hypertension. However, the Board notes that it is not established by the evidence of record that the Veteran has atherosclerosis or that he had this condition prior to his development of hypertension, or that atherosclerosis, if present, was implicated in development or worsening of the Veteran's hypertension. Similarly, in May 2011, the Veteran submitted an opinion statement by a treating VA internist, who stated that he was familiar with the Veteran's medical history and opined that it is at least as likely as not that the Veteran's hypertension is secondary to his diabetes mellitus. To support this opinion, the physician stated only that diabetes "promotes and causes atherosclerosis and kidney damage, both of which can lead to high blood pressure." However, this analysis failed to address whether the Veteran actually has atherosclerosis or kidney damage, and if he does have either of these diseases whether either actually caused or aggravated hypertension in this Veteran. Pursuant to the Board's October 2011 remand, the Veteran was again provided VA examination in December 2011. At that time, the Veteran reported that he was not treated for hypertension until 2007. The examiner acknowledged the private findings of elevated blood pressure starting in 1997 but opined that these findings did not amount to a diagnosis of hypertension. The examiner further noted that the Veteran does not carry diagnoses of atherosclerosis or kidney disease. Rather, the examiner concluded at that time that the Veteran's diabetes mellitus was at least as likely as not the cause of his hypertension. However, in a July 2012 addendum to the VA examination, the examiner noted that since his hypertension has not shown worsening since his initial diagnosis in 2007, she cannot conclude that his hypertension has been worsened by his service-connected diabetes mellitus. The Board notes the discrepancy presented between the September 2008 opinion letter from the Veteran's private physician informing of treatment for hypertension only since May 2007, with persistent hypertension only since that time, and the self-reported history as recorded by the September 2008 VA examiner of diagnosed hypertension in 1997 treated since that time with medication, as well as findings of such a history of diagnosis and treatment by the VA examiner upon review of the treatment records of the physician who submitted the September 2008 letter. In addition, over the course of his claim, the Veteran has contested the history noted in the September 2008 VA examination report, contending that hypertension was not diagnosed until 2007. Further, the findings of the January 2009 VA examiner were unsupported by clear rationale, and the VA examiner who conducted the December 2011 examination offered conflicting opinions concerning whether the Veteran's diabetes mellitus caused or aggravated his hypertension. Thus, to address the considerable discrepancies in the VA examiners' and private physician's statements, the Board obtained a VHA medical specialist's opinion in January 2013. At that time, the specialist thoroughly reviewed and discussed all the relevant information from the Veteran's claims file, including the VA examination reports, the private physician's statement, and the VA physician's statement concerning the etiology of the Veteran's hypertension. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hypertension. Because the question of whether a disability such as hypertension is related to another disorder such as diabetes mellitus is a medical question requiring expertise, the Board relies upon the January 2013 VHA specialist's opinions. This report reflects that the specialist comprehensively examined the Veteran's claims file and understood the medical questions asked by the originating agency. Additionally, the VHA specialist offered clear rationales for his opinions that the Veteran's hypertension was not likely related to service-connected diabetes mellitus, relying on both the medical records and his medical expertise. Specifically, the VHA specialist concluded that the Veteran's diagnosed hypertension is not likely linked to his service-connected diabetes mellitus or made worse thereby. In so finding, the specialist explicitly considered the statements of the Veteran and his private physician concerning the date of onset of his hypertension but found instead that the actual onset of the disorder was, at the latest, 1999-roughly contemporaneous with his development of diabetes mellitus. The Board finds that this conclusion is supported in the record, which contains notes from the Veteran's private physician indicating that he carried a diagnosis of hypertension dating from 1997 and that was carried through in his treatment records from that time to the present. In so finding, the Board acknowledges that there are statements in the file that purports to offer a link between the Veteran's current hypertension and his in-service diabetes mellitus. However, an evaluation of the probative value of medical opinion evidence is based on the medical expert's knowledge and skill in analyzing the data, and the medical conclusion reached. The weight to be attached to such opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not, and the extent to which, they considered prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). For the reasons set forth herein, the Board is satisfied that the January 2013 VHA specialist's opinion is adequate for deciding this appeal and is of greater weight than the assessments of the private physician in September 2008 and the May 2011 statement from the VA physician. In this case, the strongest evidence in favor of the Veteran's claim is the September 2008 private physician's statement suggesting that the Veteran's current hypertension was not diagnosed until 2007 and thus developed secondary to his diabetes mellitus. However, this opinion is unsupported by the facts of her own diagnoses of the Veteran with hypertension as early as 1997, with a continuing diagnosis of hypertension appearing in her treatment records from that time to the present. Similarly, the letter submitted by the VA physician in May 2011 based his reasoning on the presence of atherosclerosis and kidney disease, neither of which the Veteran has been shown to experience. Thus, as that opinion rests on an inaccurate factual premise, it is not germane to the etiological question at issue her and is thus not probative. The Board finds that this evidence is outweighed by the medical evidence from the VHA specialist's well-reasoned opinion-based on the Veteran's reported history, the medical records, and the examiner's medical expertise and current medical knowledge-that the Veteran's current hypertension is not caused or aggravated by his service-connected diabetes mellitus. In arriving at this negative opinion, the January 2013 VHA specialist considered the VA and private physicians' statements, as well as the Veteran's contentions concerning the onset of his hypertension. The specialist nevertheless concluded that the Veteran's hypertension is not likely due to or aggravated by his diabetes mellitus. Given the reliance of the private physician and the May 2011 VA physician on inaccurate factual premises, and in light of the well-reasoned opinion offered by the VHA specialist in January 2013, which relied on consideration of the Veteran's entire medical history, the Board finds the statements reflecting a possible link to be of less probative value. See Gabrielson, 7 Vet. App. at 40. The January 2013 VHA specialist provided a report that fully considered the Veteran's history and assertions, set out his findings in detail, and contained an explanation for his conclusions. Thus, the Board relies upon the VHA specialist's opinion in making its determination. As discussed above, the VHA specialist specifically addressed causation, clearly indicating that the Veteran's current hypertension is not due to or aggravated by his service-connected diabetes mellitus. The specialist offered a clear and well-reasoned rationale for this opinion, relying on the Veteran's medical history and his medical expertise, as well as current medical knowledge, in concluding that any etiological relationship or aggravation was doubtful. For these reasons, the Board concludes that the January 2013 VHA specialist's opinion is of greater weight. The Board has considered the Veteran's contentions that his hypertension is etiologically related to his service-connected diabetes mellitus. The Veteran, however, has not demonstrated that he has any medical expertise to make such an opinion or render a diagnosis for a complex etiological question such as this, which requires testing and medical expertise to diagnose and ascertain etiology. The Board notes that although the Veteran is competent to report symptoms, he does not have medical expertise and therefore cannot provide a competent opinion regarding diagnosis or causation of his claimed hypertension on a direct or a secondary basis. As a layperson without the appropriate medical training and expertise, the Veteran is simply not competent to provide a probative opinion on a medical matter such as the etiology of hypertension in relation to an additional disability. See Bostain v. West, 11 Vet. 124, 127 (1998). In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim of service connection for hypertension, that doctrine is not helpful to the Veteran in this instance. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ J. M. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs