Citation Nr: 1323193 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-20 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from September 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the benefit sought. The issue have been recharacterized to comport with the facts of the case. The Veteran testified in November 2012 before the undersigned Veterans Law Judge at a Videoconference hearing. In January 2013 the Board remanded the case for further development. The evidence on file raises a claim for service connection for ischemic heart disease as secondary to diabetes mellitus, type II. As this has not been adjudicated by the RO, this claim is referred to the RO for appropriate action. FINDING OF FACT The Veteran's hypertension is proximately due to his service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. REASONS AND BASES FOR FINDING AND CONCLUSION Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted on a secondary basis for a disability that is proximately due to or is aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Some chronic diseases, including arteriosclerosis or cardiovascular-renal disease to include hypertension, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease), Note 1, provides a definition of hypertension for VA purposes. Note 1 states that for VA purposes, hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used 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 v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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, 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). Facts The service treatment records do not contain any indication that the Veteran had any problems with high blood pressure or had a hypertension disorder during service. At his July 1967 examination for the purpose of release from active duty, the blood pressure reading was 116/88. On examination, the evaluation was normal for heart and vascular system; and the examination report's sections regarding notes and significant or interval history, and the summary of defects and diagnoses, contain no indications of any problems with high blood pressure or of a hypertension condition or other circulatory system problems. Private treatment records including statements are dated from 2002 to November 2012. A problem list dated in May 2004 noted that diabetes mellitus II was diagnosed in October 2002. That list also included hypertension and coronary artery bypass graft as conditions. Reports of laboratory diagnostic testing in 2004 contains findings for the ratio of microalbumin/creatinine, random urine. These reports note generally that a ratio of less than 30 MCG/MG creatinine is within the normal range; and a ratio of 30 or more indicates that microalbuminuria is present, and that this is as an indicator of diabetic nephropathy. These reports show that the microalbumin/creatinine ratio was 3 in March 2004, and 6 in November 2004, well within the normal range of less than 30. Private treatment records dated between October 2002 and April 2008 show that the Veteran's blood pressure was recorded as 132/68 in October 2002; 154/100 in November 2002; 154/87 in February 2003; 138/89 in April 2003; 164/89 and 148/84 in August 2003; 132/96 in November 2003; 129/84 in March 2004; 126/61 in August 2004; 129/71 in December 2004; 132/76 in April 2005; 120/70 in August 2005; 126/72 in January 2008; and 134/76 in April 2008. These records show that, beginning in October 2002, the Veteran was taking hypertension medications through 2008. During a November 2008 VA examination the Veteran reported that he was diagnosed with diabetes mellitus and hypertension, and that the condition had existed for six years. Regarding his diabetes, he reported no restriction of activity, progressive weight loss, or tingling or numbness. He did not experience urinary incontinence. He described eye problems of blurry vision and cataracts; a problem that had been present for 38 years. Diabetes did not affect the skin. He did not relate his diabetes to cardiac symptoms. He did not feel persistent coldness of extremities. He described no affect on the kidneys and no impotence. After examination, the report contains diagnoses of (1) diabetes mellitus, being treated with medication, and elevated glucose on CMP (comprehensive metabolic profile); and (2) hypertension, being treated with medication. The examiner opined that the Veteran had essential hypertension which was not aggravated by diabetes. The examiner based his opinion on the fact that there were no findings of secondary complications related to: the heart, skin, peripheral arteries, a renal condition, impotence, or neurological system. The examiner opined that the Veteran did not have any other non-diabetic condition that was worsened or increased by the diabetes. The examiner commented incidentally that results of a May 2008 stress test showed overall perfusion abnormality with reversible perfusion defects, warranting an additional diagnosis of ischemic heart disease. The examiner also noted that the Veteran had an eye problem requiring ophthalmology examination. During a November 2008 VA examination for eyes, the examination report contains a diagnosis of bilateral anterior cortical type cataracts. The examiner opined that the cataracts were most likely caused by or the result of diabetes; and that there was no finding of diabetic retinopathy on examination. In an April 2009 statement from Jaime O. Cruz, M.D., a Diplomate, American Board of Endocrinology, Diabetes and Metabolism, and Diplomate, American Board of Internal Medicine, he opined that the Veteran had diabetes with a diagnosis of metabolic syndrome, including hypertension and dyslipidemia, which manifested after the diagnosis of diabetes mellitus II in 2002. In May 2010 the Veteran submitted an internet article published by the website WebMD, titled Diabetes and High Blood Pressure, which addressed the etiological relationship between the two conditions. That article stated in part that: Having diabetes increases your risk of developing high blood pressure and other cardiovascular problems, because diabetes adversely affects the arteries, predisposing them to atherosclerosis (hardening of the arteries). Atherosclerosis can cause high blood pressure, which if not treated, can lead to blood vessel damage, stroke, heart failure, heart attack, or kidney failure. In a statement addressed to the Veteran and dated in November 2012, Umesh Arora, M.D., the Veteran's treating cardiologist, stated that having diabetes increased the Veteran's risk for developing high blood pressure and other cardiovascular problems because diabetes adversely affects arteries, predisposing them to atherosclerosis. During a February 2013 VA examination for hypertension, the examiner completed a "disability benefits questionnaire" by first finding that the Veteran was diagnosed with hypertension in 2003. The report noted that the method used to obtain the medical information was an in-person examination with review of the claims file. In defining hypertension for VA disability rating purposes, the examiner referenced the definition under Note 1 of 38 C.F.R. § 4.104, Diagnostic Code 7101. The report recorded the following medical history. The Veteran was diagnosed with diabetes mellitus in October 2002, but his blood pressure was normal that day. A flow sheet in the claims file dated from October 2002 through November 2003 documented the progression of the blood pressure elevation. The examiner noted that the criteria for hypertension required three or more readings of more than 140 mm systolic or more than 90 mm of diastolic pressure. The examiner stated that the Veteran did not meet that criteria until August 2003, and that the hypertension started after the diabetes mellitus II. The examiner noted that, for the diabetes to impact the blood pressure, however, there had to be kidney damage or atherosclerosis. The examiner opined that the Veteran did not have either at the time hypertension started. The Veteran was currently taking continuous medication for his hypertension. His current blood pressure reading was 136/68. The examiner concluded with opinions as to the likelihood that the Veteran's hypertension was in some way service connected. The examiner first opined that the hypertension was less likely than not (less than 50 percent probability) incurred in or caused by "the claimed in-service injury, event, or illness. That opinion was based on the rationale that the Veteran's blood pressure was normal during service, and was not diagnosed until 2003; and thus, there is no direct relationship to his time in service. The examiner also opined that the hypertension is less likely than not proximately due to or the result of the Veteran's service-connected condition (diabetes mellitus). That opinion was based on the rationale that, although the hypertension started after the diabetes mellitus II, in order for the diabetes to impact the blood pressure, there has to be kidney damage or atherosclerosis, and the Veteran did not have either at the time hypertension was diagnosed in August 2003. The examiner further stated that kidney function remained normal with the last BUN/creatinine on file conducted in January 2012. The examiner noted that the Veteran's cardiologist had a prescription on file with a note that related the diabetes mellitus to atherosclerosis. The examiner stated that atherosclerosis was not diagnosed until April 2011 when the Veteran had two cardiac stents placed by Dr. Arora. Analysis The Veteran seeks service connection for hypertension. As reflected in his January 2008 application for benefits, he claims that his service-connected diabetes mellitus, type II, caused his hypertension. He is not claiming, and the evidence does not suggest, that the disease began during service or is otherwise directly related to his period of service. Service connection is in effect for (1) diabetes mellitus, type II, and (2) bilateral anterior cortical cataracts associated with diabetes mellitus, type II. The evidence clearly shows a diagnosis of diabetes mellitus, type II in October 2002, and the presence of a hypertension disorder shown beginning subsequent to that time. A problem list produced in May 2004 indicated that the Veteran was diagnosed with diabetes mellitus, type II, in October 2002. That May 2004 problem list also noted that the Veteran presently had hypertension. Other private treatment records show varying levels of blood pressure readings recorded between October 2002 and April 2008. As early as November 2002 some part of the blood pressure readings meet the definition of hypertension for VA purposes. Though part of the blood pressure readings during the six year period did not meet the criteria for hypertension, this may be explained by the evidence showing the Veteran was taking antihypertensive medications during this period for treatment of the hypertensive blood pressure symptoms. The Veteran's treating physician, Dr. Cruz, who has expertise in endocrinology, and specifically diabetes and metabolism, has opined essentially that the Veteran's diabetes was linked to a diagnosis of metabolic syndrome including hypertension, which he noted began after the diagnosis of diabetes II in 2002. The Veteran's treating cardiologist essentially opined that the Veteran's diabetes mellitus II increased the risk for developing hypertension and other cardiovascular problems due to the adverse effects of diabetes mellitus, type II, on arteries, which in turn predisposed the arteries to atherosclerosis. Other evidence tends to support this opinion, as there is a diagnosis of another cardiovascular problem, ischemic heart disease, as shown in the November 2008 VA examination report. These opinions are consistent with the contemporaneous record implicating diabetes mellitus II as the causative agent for the Veteran's hypertension; and consistent with the etiological relationship between diabetes and hypertension discussed in the article Diabetes and High Blood Pressure. Diabetes mellitus type II is often accompanied by disease of various sizes of blood vessels of the cardiovascular system, which leads to premature atherosclerosis. See Dorland's Illustrated Medical Dictionary 513 (31st ed. 2007). To the extent the VA examiners' opinions were in conflict with the Veteran's claim, their opinions lacked probative value because, to great extent, they were based on premises that were inconsistent with other evidence on file and with the two opinions from Dr. Cruz, who has a noted expertise in endocrinology and diabetes, and Dr. Arora, a treating cardiologist. Their opinions are essentially consistent with the remainder of the evidence on file. As rationale for the November 2008 VA examination opinion, that examiner stated that there were no findings of secondary complications. However, the record shows that at that time there was evidence of at least one secondary complication: bilateral anterior cortical cataracts associated with diabetes mellitus, type II. There is also evidence at that time of the cardiovascular condition of ischemic heart disease. As rationale for the February 2013 VA examination opinion, the examiner stated that, although the Veteran's hypertension started after the diabetes mellitus II, for the diabetes to impact blood pressure, there must be kidney damage or atherosclerosis, and neither condition was present when the Veteran's hypertension was diagnosed in August 2003. Regardless of the date of diagnosis of atherosclerosis, it is unclear when that condition first became manifest. However, it is implicit in Dr. Arora's opinion that the Veteran's treating cardiologist dates the presence of atherosclerosis subsequent to the diagnosis of diabetes, and prior to the development of hypertension. Given the foregoing, and affording the Veteran the benefit of any doubt, as VA regulations require, service connection is warranted for hypertension is warranted. ORDER Entitlement to service connection for hypertension is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs