Citation Nr: 1322281 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 07-31 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from January 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal following an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2011 and June 2012, the Board remanded the Veteran's claim to the agency of original jurisdiction (AOJ) for additional development. Following the AOJ's most recent action on the Veteran's claim, a supplemental statement of the case (SSOC) was issued on May 16, 2013. At the same time, the AOJ received from the Veteran's representative a signed VA form waiving the 30-day AOJ waiting period following issuance of the SSOC and also waiving AOJ consideration of any additional evidence submitted by the Veteran to the Board. On May 21, 2013 the Board notified the Veteran that it had received his claims folders from the AOJ. Thereafter, additional argument and pertinent medical records from the Veteran were received by the AOJ on June 3, 2013. The AOJ did not consider the argument or medical records and forwarded the evidence directly to the Board, where it was received on June 6, 2013. In light of the Veteran's waiver of the AOJ's consideration of the additional evidence received by the Board, the evidence will be accepted for inclusion into the record on appeal. FINDINGS OF FACT 1. Hypertension did not have its clinical onset in service and is not otherwise related to active duty, including exposure to herbicides (Agent Orange); hypertension was not exhibited within the first post service year. 2. Hypertension is not proximately due to or aggravated by service-connected diabetes mellitus, type II. CONCLUSION OF LAW Hypertension was not incurred or aggravated in service, hypertension may not be presumed to have been incurred therein, and hypertension is not proximately due to or aggravated by service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist 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). VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim; (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Through an October 2004 notice letter, the RO notified the Veteran of the elements of service connection and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim for service connection for hypertension. The October 2004 notice letter also notified the Veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claim, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. With respect to deficiencies in VA's notice to the Veteran, the Board is aware that the October 2004 notice letter did not inform the Veteran of the elements of secondary service connection under 38 C.F.R. § 3.310. Furthermore, the Veteran was not provided with notice of how VA established a disability rating or assigns an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Here, the Veteran's written arguments in support of his claim reflect citation to and discussion of 38 C.F.R. § 3.310. As such, the Veteran is clearly on notice of 38 C.F.R. § 3.310 and the elements of secondary service connection. Also, as is discussed in more detail below, the Board does not find service connection is warranted for the Veteran's claim for hypertension, to include on a secondary basis and/or due to herbicide exposure. Thus, the decision does not entail the setting of a disability rating or an effective date. Accordingly, the Veteran is not harmed by any defect with regard to these elements of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (All VA notice errors are not presumptively prejudicial, and any error must be examined in the context of the facts of a particular case.) There is also no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the Veteran's service treatment records (STRs) and obtained his VA outpatient treatment records. Furthermore, the Veteran has submitted private treatment records for consideration. In this regard, following the Board's June 2012 remand, the Veteran requested the RO obtain from the VA Medical Center (VAMC) in Atlanta all his VA treatment records. At the time, a large number of records were already associated with the claims folders. It was noted in the claims folders that the VAMC Atlanta would be conducting a search of retired records. Thereafter, VA treatment records from the VAMC Atlanta were received by the RO. Additionally, the Veteran was afforded a VA contract (QTC) examination in May 2005 with respect to his claim, as well as afforded a subsequent VA examination in March 2011. A VA opinion was later provided in June 2012. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, there is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim on appeal for service connection for hypertension. 38 U.S.C.A. § 5103A(a)(2). II. Analysis The Veteran contends that service connection for hypertension is warranted on the basis that his disability is proximately due to or a result of his service-connected diabetes mellitus, or in the alternative, due to presumed herbicide (Agent Orange) exposure resulting from his service in Vietnam during the Vietnam War. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A layperson is also competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Service connection may also be granted for certain chronic diseases, such as hypertension, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3); 3.309(a). A review of the Veteran's STRs reflects neither complaints nor findings of high blood pressure or hypertension. A January 1994 VA Agent Orange examination reflects a report of sporadic hypertension in the past. The clinician's assessment did not include hypertension. A report of April 1995 VA examination includes a diagnosis of "systemic arterial hypertension on treatment." A VA treatment record, dated in August 1995, reflects the clinician's report of newly diagnosed hypertension. In a May 2005 VA contract (QTC) examination, the clinician reported that the Veteran had a 32-year history of hypertension and a 10-year history of diabetes mellitus. An April 2010 private treatment record noted the Veteran had a 10-year history of hypertension and a 10-year history of diabetes mellitus. An undated private treatment record, apparently dated sometime in 2010 and associated with the Veteran's diabetes mellitus, reflects a notation that the Veteran's hypertension began in 1991 and his diabetes mellitus in 1998. In the report of March 2011 VA examination, the date of onset of hypertension was noted as "approximately over 5 years." It was also noted that the Veteran's hypertension had been an incidental finding during a prior physical examination and that he had been started on medication at that time. The Board finds the medical evidence does not support a diagnosis of hypertension to a compensable degree within one-year of the Veteran's separation from military service in November 1970, nor has the Veteran alleged as such. Even assuming a 32-year history of hypertension as reported in the above May 2005 QTC examination, the onset of the Veteran's hypertension would be, based on such a history, sometime in 1973. Thus, service connection is not warranted for hypertension on a presumptive basis due to its onset within one year of military service. Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for 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). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 since the Veteran filed his claim for service connection for hypertension in September 2004. See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2012)). The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. The purpose of the regulation was to apply the Court's 1995 ruling in Allen, which VA had been following since the ruling and did not represent a substantive change in the law. As the change in regulation was neither a liberalization nor a restrictive change, there is no harm in following the new or old law as it is not outcome determinative. By way of background, in the above noted August 2005 rating decision, the RO granted service connection and assigned a 20 percent evaluation for diabetes mellitus, type II, effective September 22, 2004. A review of the evidence reflects completion of a VA form by the Veteran's treating private physician in October 2004. The physician commented that the Veteran had no complications, to include cardiovascular complications, associated with his diabetes mellitus. The Veteran underwent a VA contract (QTC) examination in May 2005 associated with his claim for service connection for diabetes mellitus. The Veteran reported a history of hypertension, and that he took medication for treatment. The examiner reported that the Veteran's diabetes mellitus did not affect the Veteran's arteries. The examiner opined that the Veteran had a "non-diabetic" condition of hypertension that was aggravated by diabetes mellitus. An explanation for the examiner's finding of aggravation was not provided nor could he specify the degree of disability due to aggravation without resorting to speculation. In July 2005, as in October 2004, the Veteran's treating physician again commented that the Veteran had no complications, to include cardiovascular complications, associated with his diabetes mellitus. To clarify whether hypertension owed its etiology or was aggravated by service-connected diabetes mellitus, an additional VA examination was ordered. In a report of March 2011 VA examination, the examiner noted her review of the Veteran's claims folders and consideration of the medical evidence of record, to include the May 2005 QTC examination. The VA examiner opined that the Veteran's hypertension was not due to or aggravated by his diabetes mellitus. In support of her opinion, the examiner commented that the Veteran's hypertension predated his diabetes mellitus. Also, the examiner commented that medical literature on the risk factors for hypertension did not identify diabetes mellitus. (See www.uptodate.com/contents/overview-of-hypertension-in-adults.) Furthermore, with regard to aggravation of the Veteran's hypertension, the VA examiner discussed the medical evidence and the Veteran's history, noting in particular that in the report of May 2005 QTC examination the Veteran had been identified as taking lisinopril/HCTZ. She indicated that a VA treatment note dated in September 2008 reflected that the Veteran remained on lisinopril 10/HCTZ 12.5 mg" daily, and that during the March 2011 examination the Veteran reported taking the same medication and the same dosage. In a March 2011 private treatment record associated with the Veteran's diabetes mellitus, a box was checked that systemic arterial hypertension was an "associated disease." The Board finds in this case that the most probative evidence of record is the report of May 2005 QTC examination and the report of March 2011 VA examination, as well as the March 2011 private treatment record. Other than the Veteran's contentions, no other evidence of record directly addresses whether the Veteran's service-connected diabetes mellitus, type II, caused or aggravated his hypertension. As with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board has weighed the findings from the May 2005 and March 2011 examinations as well as the March 2011 private treatment record, and assigns greater weight to the March 2011 VA examination and the VA examiner's conclusions. Here, the evidence demonstrates that the Veteran's hypertension predates the onset of his diabetes mellitus. The March 2011 examiner has reported this finding and the May 2005 examiner has also noted that the Veteran's hypertension was a non-diabetic condition. Both conclusions are given greater weight as compared to the single private medical record reference in March 2011 that the Veteran's hypertension was associated with his diabetes mellitus. No further comment on the association was noted in the medical record. Otherwise, none of the other evidence of record conflicts or refutes the findings by the VA and QTC examiners. With regard to the VA and QTC examiners' conclusion regarding aggravation, the March 2011 VA examiner cited to the medical evidence associated with the claims folders to support her opinion that the Veteran's hypertension was not aggravated by his diabetes mellitus, type II. Furthermore, a March 2013 private treatment record documents that the Veteran continues to take Lisinopril-HCTZ once daily. (Parenthetically, the term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.) The May 2005 QTC examiner, who does not appear to have had the benefit of the claims folders to review at the time of his examination (no reference to a review of the claims folders was made in the May 2005 report of examination), provided no explanation for his conclusion that the Veteran's hypertension had been aggravated by his diabetes mellitus. Furthermore, the examiner was unable to specify any measurable increase in underlying disability to support a finding of aggravation. Therefore, the Board assigns greater weight to the March 2011 VA examiner's conclusion as it is supported by an explanation as well as citation to the medical evidence. As such, the March 2011 VA examiner's conclusion is found more probative and persuasive as compared to that of the May 2005 QTC examiner. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (upholding Board determination that VA examination reports were more probative because they were more thorough and detailed, they discussed the conflicting opinions, and examiners had access to the claims file); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate and fully articulated and is based on sound reasoning). The Board has also weighed the probative value of the Veteran's lay statements regarding the issue of secondary service connection. While lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case-whether the Veteran's hypertension is related to service or service-connected disability falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board concludes that the evidence does not support that the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus, type II. In so finding, the Board is aware of the conflicting evidence of record concerning diabetes mellitus as a risk factor for hypertension. In the online medical article cited above, medical doctors did not list diabetes mellitus as one of a variety of risk factors for hypertension. In VA's published notice in the Federal Register cited to and discussed below, diabetes mellitus was noted as being one of the well established risk factors for hypertension, along with tobacco use, diet, physical inactivity, obesity, alcohol use, and hereditary. Notwithstanding the conflict in information, the Board nonetheless finds persuasive that the evidence of record supports that the Veteran's hypertension pre-existed his diabetes mellitus. Thus, any discrepancy between the above noted evidence is moot. The Veteran has also contended that his hypertension is directly related to service due to his presumed herbicide (Agent Orange) exposure. He cites to a National Academy of Sciences (NAS) report in 2007 as support for his claim. In that report, the NAS noted that there was suggestive but limited evidence that exposure to Agent Orange and other herbicides used during the Vietnam War were associated with an increased chance of developing high blood pressure in some Veterans. The Board notes that on August 10, 2012, VA published in the Federal Register "Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010. See Notice, 77 Fed. Reg. 47924-47928 (2012). In that Notice, VA discussed NAS findings concerning hypertension and its possible relationship to herbicide exposure. VA noted that NAS had placed hypertension in the "Limited or Suggestive Evidence of Association" category. VA ultimately concluded that the available evidence from the NAS was not sufficient to establish a new presumption of service connection for hypertension in veterans exposed to herbicides. Thus, hypertension is not one of the listed conditions presumed related to herbicide exposure under 38 U.S.C.A. § 1116(a) and 38 C.F.R. § 3.309(e). Therefore, while the Veteran is presumed to have been exposed to an herbicide agent in Vietnam, his hypertension is not presumed to be related to herbicide exposure due to the fact that hypertension is not a listed disease recognized by law as being presumptively related to such exposure. 38 U.S.C.A. § 1116(a)(2)(F); 38 C.F.R. § 3.309(e). Also, there is no evidence that the Veteran's hypertension was incurred in or aggravated by military service, or that it is related to military service based on presumed exposure to Agent Orange. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999). As noted above, the NAS studies suggest only limited evidence that exposure to Agent Orange in Vietnam is associated with an increased chance of developing high blood pressure in some Veterans. Still, as the NAS studies did suggest a possible connection, albeit limited, an additional VA medical opinion was obtained. In June 2012, a VA examiner opined (citing to the medical evidence of record) that the Veteran's hypertension did not have its onset during service. She also noted that there was no proven positive association between herbicide exposure and hypertension. In support of this opinion, the examiner noted that review of medical literatures failed to confirm any association between dioxin exposure and hypertension. Here, while the VA examiner does not cite to the medical literature that provides the basis of her opinion, the opinion is supported by the above noted NAS Update 2010. As noted above, NAS has placed hypertension in the limited or suggestive evidence of association category. NAS has defined this category of association to mean that the "evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." See Notice, 77 Fed. Reg. at 47926. The Board does not find that a "limited or suggestive evidence of association" category for hypertension equates to a finding that a relationship as likely as not exists or that the evidence on this matter is in equipoise. Otherwise, the record on appeal does not include any medical evidence relating the Veteran's hypertension to his period of active service or his exposure to herbicides in Vietnam. Furthermore, the Veteran's lay statements in support of his claim on this issue fall outside the realm of common knowledge or expertise of the Veteran. Jandreau, supra. The Board is also aware that the Veteran has submitted medical literature which notes that hypertension is categorized as either essential or secondary, and that secondary hypertension can be caused by "radiation enteritis." Radiation enteritis is a term used to describe damage to the lining of the intestines due to radiation. The Veteran argues that he has secondary hypertension and that he was exposed to radiation in service. Notwithstanding any radiation the Veteran may have been exposed to during his period of active service, the Board notes that private treatment records dated in March 2013 note a diagnosis of essential hypertension. The evidence of record does not otherwise support a diagnosis of secondary hypertension. Therefore, in light of the Board's discussion and conclusions, above, entitlement to service connection for hypertension must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs