Citation Nr: 1323018 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-05 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II (DM). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously remanded by the Board in October 2012 for additional development. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A supplemental statement of the case (SSOC) was issued in April 2013, which addressed this additional evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Affording the Veteran the benefit of the doubt, the satisfactory and probative medical evidence of record has shown that hypertension is related to his DM. CONCLUSION OF LAW The criteria for the establishment of service connection for hypertension, to include as secondary to service-connected DM, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). The legislation has eliminated the well-grounded claim requirement, has expanded the duty of VA to notify the appellant and the representative, and has enhanced its duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. See generally VCAA. In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist, as required by the VCAA. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this issue given the fully favorable nature of the Board's decision. Pertinent Laws and Regulations Service connection may be granted for 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(a) (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection will also be presumed for certain chronic diseases, including hypertension, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R §§ 3.307, 3.309. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. § 1113. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-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 progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v. West, 13 Vet. App. 31, 35 (1999). Analysis The Veteran contends that during his active service in Vietnam, he was a noncommissioned officer in charge of a Chemical Corps unit with a mission that included spraying herbicides by ground and from helicopters and maintaining the spray equipment following spray missions. See VA Form 9, dated February 2009. The Veteran's DD forms 214 reflect that he served in the Republic of Vietnam from March 1970 to February 1971 and therefore exposure to herbicides is presumed. These records also reflect that his military occupational specialty (MOS) in service was that of a chemical staff specialist and a military policeman. Service treatment reports reflect that the Veteran's blood pressure readings included findings of: 130/70 in June 1956; 110/70 in October 1957; 140/90 in August 1958; 130/84 in June 1963; 124/90 in October 1967; 138/82 in March 1968; 128/80, 128/88 and 132/90 in March 1970; 125/88 in July 1973; 118/76 in November 1977; 108/74 in October 1978; and 128/82 in May 1979. Within one year of his separation from service, in an April 1980 VA examination, the Veteran's blood pressure was recorded at 140/90, per the findings in a March 1980 echocardiogram (ECG) associated with this examination. A January 1983 VA Agent Orange examination revealed the Veteran had reported working for 30 days cleaning spray nozzles which had been used for Agent Orange. Documented Agent Orange exposure was noted in this examination, however, hypertension was not diagnosed at that time. VA outpatient treatment reports from April 1982 to December 1983, private medical records from December 1992 to January 1996, and VA outpatient treatment reports from July 1996 to January 2013 reflect that the Veteran was initially diagnosed with hypertension in a March 1997 VA outpatient treatment report, with a noted history of hypertension for 6 years. He was subsequently treated for and diagnosed with hypertension. In a December 2006 VA examination, the Veteran was diagnosed with essential hypertension with chronic renal insufficiency. The examiner found that it was not at least as likely as not that the Veteran's current hypertension was secondary to DM, as he did not have any history of proteinuria or micro-albuminuria. The Veteran provided a letter dated in July 2007 regarding his participation in a 2007 study by the Army Chemical Corps Vietnam Veterans Health Study (published in the American Journal of Industrial Medicine), indicating that Vietnam veterans exposed to high levels of herbicide as sprayers experienced a higher risk of several chronic medical conditions than non-Vietnam veterans, including diabetes, heart disease, hypertension and chronic respiratory condition. A copy of the front page of the study with the background information was also included along with the letter. In January 2013, the same VA examiner who provided the December 2006 VA examination, provided supplemental opinions regarding the etiology of the Veteran's hypertension. He found that it was less likely than not that the Veteran's hypertension had its clinical onset during active service or was related to any in-service disease, event or injury, including exposure to herbicides. He also found that it was less likely than not that hypertension was proximately due to, the result of, or permanently aggravated by his service-connected DM. The examiner was also asked to provide an opinion as to whether it was at least as likely as not that the Veteran's hypertension had its clinical onset during the first post-service year, and was asked to specifically acknowledge the Veteran's blood pressure reading of 140/90 on VA examination in March 1980. However, the examiner noted that he could not find any follow up records for the Veteran's blood pressure with 140/90 on VA examination in March 1980 and concluded that it was less likely than not that the Veteran's hypertension had its clinical onset during active service or was related to any in-service disease, event, or injury, including exposure to herbicides. In so finding, he did not furnish an opinion regarding whether hypertension had its onset during the first post service year, and while there is an April 1980 VA examination and with a blood pressure reading of 140/90 of record, along with a March 1980 ECG report noting blood pressure of 140/90 performed in conjunction with the April 1980 VA examination, it does not appear that he reviewed it. A July 2013 VA medical opinion was provided by a Veterans Health Administration (VHA) specialist who was asked to review the claims file entirely, including the blood pressure readings noted in service and following service, the Veterans' MOS in service, the July 2007 letter and study by the Army Chemical Corps Vietnam Veterans Health Study and April 1980 VA examination with a March 1980 ECG report. The VHA specialist was asked to provide opinions on whether the Veteran's hypertension had its onset in service or within one year of his separation from service or whether hypertension was caused or aggravated by his DM. In relevant part, the VHA specialist opined that the Veteran's hypertension was as likely as not caused or exacerbated by his DM, but not exclusively and that hypertension was more likely than not aggravated beyond the natural progression by DM. In his rationale, he explained that the Veteran's DM predated the hypertension diagnosis by about five years, which was a long-enough interval, in his opinion, to have provided the opportunity for adverse effects of the diabetic milieu on neurovascular structures to manifest clinically. The Veteran's use of nicotine, ethanol and increasing body weight were also noted as considerations for hypertension development and the contribution of DM to hypertension was noted to be 25 percent. The VHA specialist also explained that there was evidence in the latter half of the 1990's that the Veteran's hypertension appeared less well controlled. He concluded that, giving any benefit of the doubt to the Veteran, it was logical to conclude that a worsening of blood pressure control, may, as likely as not, be in some part due to the ongoing adverse effects of the diabetic milieu. After a careful review of the record and resolving all doubt in the Veteran's favor, the Board has determined, based upon the satisfactory and probative evidence set forth above, that service connection for hypertension, to include as secondary to DM, is warranted. The Board notes initially, that the Veteran is service-connected for DM. The medical evidence of record also demonstrates that the Veteran is currently diagnosed with hypertension. There is also a positive medical opinion of record, relating the Veteran's hypertension to his service-connected DM. The medical opinion provided by the July 2013 VHA specialist was based upon a review of the claims file as well the medical expertise of the VHA specialist and was supported with an adequate rationale. Therefore, this opinion is afforded significant probative value. Therefore, the Board finds that the July 2013 VHA specialist's opinion, taken together with the rest of the evidence of record, places the evidence in relative equipoise that the Veteran's hypertension is secondary to DM, and the benefit of the doubt rule will therefore be applied to resolve doubt in favor of the Veteran. Accordingly, on balance, the evidence of record collectively shows that the Veteran's hypertension is proximately due to and the result of his service-connected DM. Thus, as the evidence supports the Veteran's claim, service connection for a hypertension, to include as secondary to service-connected DM, is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). See also 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for hypertension, to include as secondary to service-connected DM, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs