Citation Nr: 1324342 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 10-06 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension to include as due to exposure to Agent Orange and as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1966 to August 1968, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Board, in pertinent part, remanded the claim for further development. No further action to ensure compliance with the Board's remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Hypertension was not affirmatively shown to have been present during service; hypertension as a chronic disease was not manifested to a compensable degree within one year from the date of separation from service in August 1968; hypertension, first diagnosed after service beyond the one-year presumptive period for a chronic disease, is otherwise unrelated to an injury, disease, or event in service, including exposure to Agent Orange; and hypertension is not caused by or made worse by service-connected diabetes mellitus. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service; hypertension as a chronic disease may not be presumed to have been incurred in service; hypertension is not caused by exposure to Agent Orange; and hypertension is not caused by or aggravated by service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107(b) (West 2002 & 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided a pre-adjudication VCAA notice by letter dated in September 2008. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. The Veteran was afforded a VA examination in December 2008, as well as a VA examination in September 2011. As the December 2008 and September 2011 VA examinations reports are based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examinations report are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). 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). Service connection may also 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). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be granted for a disability that is proximately due to or the result of (caused by) a service- connected disability. Secondary service connection also includes the theory of aggravation where a nonservice connected disability is aggravated (permanently made worse) by a service connected disability. 38 C.F.R. § 3.310(a). A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to herbicide agents, including an herbicide commonly referred to as Agent Orange. 38 U.S.C.A. § 1116(f). If a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain specified diseases, but headaches, including migraine, are not one of the specified diseases. 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 64 Fed. Reg. 59232 (1999). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran was not in combat, the provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The Veteran served on active duty from September 1966 to August 1968, including service in the Republic of Vietnam. The service treatment records contain no complaint, finding, history, symptom, treatment, or diagnosis of hypertension, including any elevated blood pressure readings. On enlistment examination, the blood pressure reading was 128/84, and the heart and vascular system were evaluated as normal. In August 1967, the blood pressure reading was 124/72. On separation examination, the blood pressure reading was 124/80 and the heart and vascular system were evaluated as normal. After service, in June 1994, H. Press, M.D., noted a blood pressure reading of 160/90 and the impression was hypertension. VA records show that in April 1996 the diagnoses including diabetes mellitus and hypertension. In January 2007, it was noted that the Veteran had hypertension and diabetes mellitus for nine years. In April 2007 on VA examination, the Veteran gave a history of diabetes since 1996. History also included high blood pressure. The VA examiner stated that hypertension was not related to the diabetes. In May 2007, a VA physician stated that the Veteran had diabetes and hypertension, but was not qualified to state whether hypertension was related to service. In September 2008, the Veteran's spouse stated that after the Veteran returned from Vietnam he had high blood pressure, but the medical records documenting high blood pressure were not available. She stated that the Veteran began receiving treatment at a VA by 1997. In December 2008, on VA examination, it was noted that the Veteran served in the Army from 1966 to 1968, including service in Vietnam in 1967. The Veteran stated that he served as a clerk in the transportation supply department at Cam Ranh Bay, Vietnam, and that he did not have combat exposure. He stated that when he went to VA in 1997 for evaluation for exposure to Agent Orange the diagnoses were diabetes mellitus and hypertension. It was noted that the Veteran had no heart disease or vascular problems. The VA examiner stated that hypertension was not likely related to diabetes mellitus, because hypertension was of the essential type. In September 2011 on VA examination, the VA examiner noted that hypertension was diagnosed in the 1990s. The diagnosis was hypertension with a date of diagnosis in 1997. The VA examiner commented that hypertension was less likely as not (less than 50/50 probability) permanently aggravated by diabetes mellitus. The VA examiner stated that respected medical authorities and journals (JAMA, and Harrison's Internal Medicine) had not made a connection between diabetes mellitus and hypertension in the sense that diabetes mellitus aggravated hypertension directly. The VA examiner reported that in a case of renal failure secondary to diabetes mellitus causing hypertension, then an indirect connection could be made. The VA examiner indicated that since the Veteran had normal renal function, it was less likely than not that hypertension was aggravated by diabetes mellitus. Analysis The Veteran is service-connected for diabetes mellitus. He contends that hypertension is related to exposure to Agent Orange and to service-connected diabetes mellitus. The Veteran asserts that diabetes mellitus causes hypertension. For the purpose of the analysis, hypertension is defined as diastolic blood pressure that is predominantly 90 millimeters (mm.) or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. Dorland's Illustrated Medical Dictionary 909 (31st ed. 2007). Theories of Service Connection Hypertension and exposure to Agent Orange and hypertension secondary to service connected diabetes mellitus are addressed separately below under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.310. 38 C.F.R. § 3.303(a) Affirmatively Showing Inception in Service On the basis of the service treatment records alone, there were three blood pressure readings of 128/84, 124/72, and 124/80 (not predominantly 90 diastolic or predominantly 160 systolic), and no complaint, finding, history, symptom, treatment, or diagnosis of hypertension. For this reason, hypertension was not affirmatively shown to have been present during service, and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. 38 C.F.R. § 3.303(b) Chronicity and Continuity of Symptomatology As symptoms of hypertension were not noted, that is, observed, in service, and as there is no competent evidence either contemporaneous with or after service that symptoms of hypertension were noted during service, and as the Veteran has not asserted in statements otherwise, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. 38 C.F.R. § 3.303(d) First Diagnosed after Service Service connection may still be granted for a disease, first diagnosed after service, when all the evidence, including that during and after service establishes that the disease was incurred in service under 38 C.F.R. § 3.303(d). And lay evidence may serve to support a claim for service connection. In a claim of service connection, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.1599; Layno v. Brown, 6 Vet. App. 465, 69 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.). And the Veteran as a lay person is also competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Veteran and his spouse are competent to describe elevated blood pressure readings, which are symptoms of hypertension, the diagnosis of hypertension itself is not simple medical condition the Veteran or the Veteran's spouse are competent to identify, because the diagnosis falls outside the realm of common knowledge of a lay person, that is, the diagnosis cannot be made based on mere personal observation, which comes through sensory perception. And it is not argued or shown that the Veteran or his spouse is otherwise qualified through specialized education, training, or experience to diagnose hypertension. Also hypertension is not a type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a dislocated shoulder or a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of current case law, hypertension is more analogous to an internal disease process such as rheumatic fever than either flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, hypertension is not a type of condition under case law that has been found to be capable of lay observation. As hypertension is not the type of condition that can be identified based on personal observation either as a simple medical condition under Jandreau, or by case law, any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran or his spouse is otherwise qualified through specialized education, training, or experience to diagnose hypertension before 1994. As for the Veteran describing a contemporaneous medical diagnosis and describing symptoms that later support a diagnosis by a medical professional, there is no evidence that a medical professional diagnosed hypertension before 1994 or no evidence that medical professional related hypertension to an injury, disease, or event in service, excluding exposure to Agent Orange and to diabetes mellitus, which are addressed separately. 38 C.F.R. §§ 3.307 and 3.309 Presumptive Service Connection for Hypertension as a Chronic Disease As for presumptive service connection for hypertension as a chronic disease, hypertension was first documented in 1994. And 1994 is beyond the one year presumptive period after discharge from service in 1968 for presumptive service connection for hypertension as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. 38 U.S.C.A. § 1116 (Exposure to Agent Orange) As the Veteran served in Vietnam, it is presumed that he was exposed to Agent Orange under 38 U.S.C.A. § 1116. Hypertension however is not on the list of diseases subject to presumptive service connection under 38 C.F.R. § 3.309(e), and service connection for hypertension due to exposure to Agent Orange on a presumptive bases under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e) is not established. Notwithstanding the provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes hypertension. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). The remaining question is whether there is competent and credible evidence that hypertension is actually caused by exposure to Agent Orange. In this case, the Veteran has not submitted any medical or scientific evidence that shows a positive association between hypertension and exposure to Agent Orange. In the absence of any evidence suggestive of a direct causally relationship between exposure to Agent Orange and hypertension, VA is not required to further develop the claim based on exposure to Agent Orange by affording the Veteran a VA examination or by obtaining a VA medical opinion under the duty to assist. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To the extent the Veteran has expressed the opinion that hypertension is related to exposure to Agent Orange, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson at 1316. Competency is a question of fact, which is to be addressed by the Board. Jandreau at 1377. Here the question of the relationship between hypertension and exposure to Agent Orange is not a simple medical condition as under 38 U.S.C.A. § 1116(b) and 38 C.F.R. § 1.17, the Secretary of VA is required by law to issue a presumption of service connection when sound medical and scientific evidence shows a positive association between a disease and exposure to Agent Orange. The Veteran as a lay person is not competent to offer an opinion on a matter that requires medical or scientific evidence and it is not argued or shown that the Veteran is otherwise qualified through specialized, education, training, or experience in medicine or science to offer an opinion on the relationship between hypertension and exposure to Agent Orange. 38 C.F.R. § 3.310 Secondary Service Connection To the extent that the Veteran argues that hypertension is secondary to service-connected diabetes mellitus, the Veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson at 1316. Competency is a question of fact, which is to be addressed by the Board. Jandreau at 1377. The Veteran's opinion as a lay person is limited to inferences that are rationally based on the Veteran's perception and does not require specialized knowledge, education, training, or experience. Here the question of the relationship between hypertension and service-connected diabetes mellitus is not a simple medical condition as the Veteran as a lay person is not competent to declare either the presence or diagnosis of hypertension based on personal observation, so that any inference based on what is not personally observable cannot be competent lay evidence. And it is not argued or shown that the Veteran is otherwise qualified through specialized, education, training, or experience to offer an opinion on the relationship between hypertension and service-connected diabetes mellitus with erectile dysfunction. As the Veteran's opinion is not competent evidence on the question of secondary service connection, the Veteran's opinion is excluded, that is, the opinion is not to be considered as evidence in support of the claim. As for the evidence of record addressing secondary service connection, hypertension has been present by history since 1994. In December 2008, a VA examiner stated that it was less likely as not that hypertension was related to diabetes, because hypertension was essential hypertension. There is no medical opinion that the service-connected diabetes mellitus caused hypertension. As for whether the service-connected diabetes mellitus aggravated hypertension, that is, hypertension is permanently made worse by diabetes mellitus, in September 2011 a VA examiner, who is qualified through education, training, or experience to offer a medical opinion, 38 C.F.R. § 3.159, expressed the opinion that the Veteran's hypertension was less likely as not permanently aggravated by his service-connected diabetes mellitus. The VA examiner indicated that respected medical authorities and journals (JAMA, and Harrison's Internal Medicine) had not made a connection between diabetes mellitus and hypertension in the sense that diabetes mellitus aggravated hypertension directly. The examiner reported that in a case of renal failure secondary to diabetes mellitus causing hypertension, then an indirect connection could be made. The examiner indicated that since the Veteran had normal renal function, it was less likely than not that hypertension was aggravated by diabetes mellitus. This evidence is persuasive evidence against the claim and there is no favorable medical evidence. Summary As there is no competent evidence favorable to claim on material issues of fact, the preponderance of the evidence is against the claim based on the applicable theories of service connection, applying 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) and (b) (chronicity and continuity of symptomatology), 38 C.F.R. §§ 3.307 and 3.309 (presumptive service connection for a chronic disease), 38 U.S.C.A. § 1116 (presumptive service connection due to exposure to Agent Orange), and 38 C.F.R. § 3.310(a) (secondary service connection), and the benefit of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for hypertension to include as due to exposure to Agent Orange and as secondary to service-connected diabetes mellitus is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs