Citation Nr: 1322219 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 08-18 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus (DMII) and ischemic heart disease. REPRESENTATION Veteran represented by: Monte C. Phillips, Attorney at Law ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1969, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in relevant part, denied the benefit sought on appeal. In May 2012, the Board remanded the Veteran's claim on appeal for further development. Although the Veteran initiated an appeal with respect to the denial of his service connection claim for coronary artery disease, as also denied in the October 2007 rating decision, service connection for ischemic heart disease was subsequently granted in a December 2010 rating decision, thereby satisfying his appeal with respect to that claim. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). FINDINGS OF FACT 1. Service connection is in effect for both DMII and ischemic heart disease. 2. The evidence of record does not support a finding that the Veteran's hypertension is etiologically related to his active service. 3. The evidence of record does not support a finding that the Veteran's hypertension is proximately due to, or has been aggravated by, his service-connected DMII or ischemic heart disease. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, including as secondary to service-connected DMII and ischemic heart disease, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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 and 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 expected to provide. 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, 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. 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. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran has received essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). A July 2007 VCAA letter from the RO informed the Veteran of all the elements required by 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and pertinent post-service treatment records, and providing an examination when necessary. 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment. Moreover, his statements in support of his claim are of record. The Veteran has additionally been afforded multiple VA examinations with respect to his claim, and the Board requested an additional medical expert opinion from a health care professional in VA's Veterans Health Administration (VHA) pertaining to the Veteran's contended theories of entitlement to service connection for hypertension. See 38 C.F.R. § 20.901(a) (2012) (the Board may obtain a medical opinion from an appropriate health care professional in the VHA of VA on medical questions involved in the consideration of an appeal when, in its judgment, such medical expertise is needed for equitable disposition of an appeal); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (rev'd on other grounds by Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). Moreover, the Board finds that the RO/AMC substantially complied with the Board's May 2012 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board remanded the Veteran's claim in order to obtain medical comment from a VA examiner with respect to whether the Veteran's hypertension was at least as likely as not caused by or aggravated by his service-connected DMII or ischemic heart disease. The requested VA medical opinion was provided in June 2012. However, due to some inadequacies in the VA examination report, additional comment on the etiology of the Veteran's hypertension was requested via a VHA medical expert opinion in January 2013. Collectively, however, these opinions satisfy the inquiries posed in the Board's May 2012 remand, thus resulting in substantial compliance with development sought in those remand directives. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Service Connection The Veteran's primary contention is that he developed hypertension as secondary to his service-connected DMII. Additional theories of causation have been raised in the record, including relating his diagnosed hypertension directly to his period of active service, or alternatively secondarily relating the disability to service-connected ischemic heart disease. A. Governing Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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 Walker, 701 F.3d 133; 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). Service connection may be granted for certain chronic diseases, including cardiovascular-renal disease, such as hypertension, when such disability is manifested to a degree of 10 percent or more within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112(a) (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). When service connection for such chronic diseases is at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. See Walker, supra. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). Additionally, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2012). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the non-service-connected disease or injury. See Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service connected. See 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. See 38 C.F.R. § 3.310(b) (2012). In cases of aggravation of a Veteran's non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.322 (2012). In making all determinations, the Board must fully consider the lay assertions of record. Davidson, 581 F.3d 1313. A layperson is competent to report on the onset and continuity of 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, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v, 492 F.3d at 1376-77. 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, 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) (West 2002). The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson, 2 Vet. App. at 618. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. 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 a 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-Rodriguez, 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."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Analysis At the outset, the Board notes that service connection has been in effect for DMII since August 2003, and service connection has been in effect for ischemic heart disease since November 1990. Based on a review of the record, the Veteran clearly suffers from currently diagnosed hypertension. Notably, recent diagnoses were made in VA examinations reports dated in July 2007, January 2010, and June 2010. Accordingly, the Board finds that the current disability requirement for service connection for hypertension has been met. See Davidson, supra; see also Wallin, supra. A review of the Veteran's service treatment records (STRs) reveals no indication that he was diagnosed with or treated for hypertension during his active service. He was noted to have a blood pressure of 126/80 during his September 1966 induction examination. During his undated separation examination, he was found to have an elevated blood pressure reading of 144/98. No additional evidence pertaining to blood pressure readings or hypertension is found in his STRs. The earliest evidence of record noting a hypertension diagnosis is found in a private treatment report dated in August 1995. Hypertension treatment was provided on a fairly routine basis from that point forward both through VA and private medical providers. Earlier private and VA treatment records fail to note a diagnosis of hypertension prior to that time. Although essential hypertension was diagnosed during the Veteran's July 2007 VA examination for DMII, the VA examiner did not provide an opinion regarding the etiology of the Veteran's hypertension. During the Veteran's January 2010 VA examination for DMII, the VA examiner provided the opinion that hypertension was only secondary to diabetes through the development of genitourinary tract proteinuria. Where the Veteran was not found to have proteinuria, the examiner gave the opinion that his hypertension was essential. Similarly, during the Veteran's June 2010 VA heart examination, the VA examiner provided the opinion that for hypertension to develop secondary to diabetes, there would need to be a renal component which was not noted in the Veteran's case. Therefore, the examiner opined that hypertension was not incurred secondary to diabetes. The examiner additionally opined that based on the information gathered, the Veteran's hypertension was not likely secondary to heart disease. The examiner did not, however, provide a clear rationale for this opinion. See Nieves-Rodriguez, 22 Vet. App. 295. Although cardiac hypertension was diagnosed during VA examinations dated in October 2010, the examination reports did not contain opinions regarding the etiology of the disability. An opinion regarding the etiology of the Veteran's hypertension was subsequently obtained, however, in March 2011. In the March 2011 VA examination report, the VA examiner indicated that a urinalysis performed during an October 2010 primary care appointment noted no proteinuria. BUN and creatinine levels were also within normal limits. The examiner noted that multiple other reports from laboratory readings also revealed no abnormalities. The examiner indicated again that the normal pathway for the development of hypertension secondary to diabetes was through the development of diabetic kidney disease, and that there was no direct cause from diabetes to hypertension except through kidney problems. The examiner further noted that the development of kidney disease was noted by the leakage of protein into the urine and/or elevation of BUN and creatinine. Where all of these indicators were noted to be absent for the Veteran, the examiner opined that it was not likely that hypertension was secondary to diabetes, but more likely was essential. The examiner further opined that it was not likely that hypertension was secondary to ischemic heart disease. The examiner again, however, did not provide a rationale for this later opinion regarding ischemic heart disease. The Board remanded the Veteran's hypertension claim in May 2012 in order to request that a VA examiner provide further medical comment with respect to whether the Veteran's hypertension was at least as likely as not caused by or aggravated by his service-connected DMII or ischemic heart disease. An additional VA medical opinion was provided in June 2012. In that opinion, the VA examiner concluded that the Veteran's hypertension was less likely than not proximately due to or the result of a service-connected condition. The examiner specifically rationalized this opinion by indicating that the Veteran's did not have nephropathy or chronic kidney disease to suggest that his hypertension was secondary to diabetes. The examiner also indicated that ischemic heart disease was not a cause for hypertension. The examiner additionally checked a box to indicate that the Veteran's hypertension clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In this case, however, the Board believes the examiner must have checked this box in error, as such an opinion was not requested by the Board, and there is no evidence to suggest that his hypertension preceded his active service. Therefore, the Board finds that this indication has no bearing in the Veteran's case. After a review of the June 2012 VA opinion, it was still unclear whether the VA examiner considered whether the Veteran's hypertension may have been aggravated by his service-connected diabetes or service-connected ischemic heart disease. Moreover, because the VA examiner did not provide a clear rationale for the conclusion that the Veteran's hypertension was not caused by his service-connected ischemic heart disease, the Board requested still further medical comment through a VHA medical expert opinion in January 2013. In February 2013, a VHA specialist in internal medicine reviewed the claims file and provided medical opinions regarding the etiology of the Veteran's hypertension as requested by the Board. With respect to whether the Veteran's hypertension was at least as likely as not incurred as a direct result of his active service, the VHA specialist provided the opinion that it was unlikely that the Veteran's current hypertension was incurred or aggravated while in service. Here, the VHA specialist noted that the Veteran had a normal blood pressure reading at his enlistment examination and that the only other blood pressure reading documented during his service was the reading of 144/98, during his undated separation examination. The specialist further noted that regulations of the Joint National Committee on diagnosing blood pressure require that there must be an abnormal average of two or more blood pressures on two or more different visits after an initial screen in order to diagnose hypertension. The Veteran's record did not support this diagnosis until sometime around 1990, many years after his separation from service. Similarly, the VHA specialist noted that there was no evidence of record to support a finding that the Veteran's hypertension was manifested to a degree of 10 percent or more within the one-year period after his separation from service. With respect to whether the Veteran's hypertension was caused by any of his service-connected disabilities, to include DMII or ischemic heart disease, the VHA specialist opined that it was unlikely that current hypertension was caused by either service-connected disability. Here, the specialist indicated that the risk factors which are not directly causative but which are associated with essential or primary hypertension included increased sodium intake, obesity and weight gain, excess alcohol intake, decreased physical activity, hyperlipidemia, and family medical history of hypertension. Known causes of secondary hypertension included primary renal disease, primary aldosteronism, pheochromocytoma, renovascular disease coarctation of the aorta, Cushing's syndrome, thyroid disorders and obstructive sleep apnea. The specialist noted that upon review of the record, service connection is not in effect for either of these disabilities. Additionally, the VHA specialist noted that there were no findings in any of the medical literature or known pathophysiology that supported either ischemic heart disease or diabetes as a cause of hypertension. The examiner finally noted that there is a small chance, though unlikely, that diabetes which caused renal impairment may aggravate hypertension, but there was no evidence in the medical record that the Veteran had any renal impairment based on multiple normal creatinine and urinalysis readings which are the usual ways to measure renal impairment. The VHA specialist specifically noted that none of the Veteran's other service-connected disabilities, including ischemic heart disease, would aggravate hypertension. Based on review of the lay and medical evidence of record, including the February 2013 VHA specialist's thorough opinion, there is no evidence to support a finding that the Veteran's hypertension is etiologically related to his military service on a direct or secondary basis. In this regard, the Board finds that the VHA specialist's opinion is well-informed, well-reasoned and fully articulated. With respect to a direct relationship between the Veteran's hypertension and his active service, the VHA specialist specifically noted that it was not likely the Veteran's diabetes was caused during his service, as there was insufficient evidence to support a diagnosis until many years after his service. Here, the Board also notes that there is no reason to believe that an earlier mention of hypertension would not have been made in the Veteran's earlier post-service medical records, if indeed an earlier diagnosis had been made. Additionally, the VHA specialist and other VA medical opinions of record indicated that there was no evidence to suggest that the Veteran's hypertension was caused or aggravated by his service-connected DMII. Here, all clinicians have noted an absence of renal disease, which has been cited as the only factor connecting prior DMII with hypertension. Finally, the VHA specialist's thorough opinion indicated that the Veteran's ischemic heart disease could not cause or aggravate his hypertension. The VHA specialist listed the only known disabilities which secondarily contribute to hypertension and noted an absence in medical literature of any indication that hypertension may be caused or aggravated by DMII or ischemic heart disease, except through the more uncommon possibility when DMII first causes renal dysfunction. Accordingly, the Board finds that the evidence of record fails to show that the Veteran's hypertension had its onset during service or is otherwise related to service, to include on a secondary basis by means of his service-connected DMII or ischemic heart disease. Where the Veteran is not professionally qualified to give a medical diagnosis or to provide a medical etiology regarding the onset of his hypertension, and where there is no competent or credible evidence of record showing that his hypertension had its onset during service or is otherwise related to any in-service disease, event, or injury, including as a result of service-connected DMII or ischemic heart disease, service connection for hypertension must be denied. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377 n.4. For the reasons and bases provided above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). Accordingly, the Veteran's claim for service connection for hypertension is denied. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs