Citation Nr: 1324416 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-40 563A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to February 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by which the RO, in pertinent part, denied entitlement to the benefits sought herein. In August 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge via video teleconference. A transcript of the hearing is of record. In September 2011, the Veteran waived initial RO consideration of additional evidence submitted. 38 C.F.R. § 20.1304 (c) (2012). The issue of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is suffering from essential hypertension. 2. The Veteran's hypertension is not shown to be related to his active duty service, it did not manifest until many years after service separation, and it is not proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, was not proximately due to or aggravated by a service-connected disability, and service connection for hypertension may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107(b) (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 Veterans Claims Assistance Act of 2000 (VCAA) As provided for by 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, 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This 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). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. 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. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also discussed disability ratings and effective dates as mandated by the Court in Dingess. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, 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). First, all relevant medical evidence was obtained. In addition, the Veteran was afforded a VA examination in connection with the claim. The Board finds that the VA examinations were provided relied on erroneous information regarding the date of onset of diabetes mellitus. The VA examinations, however, are adequate for the purpose of deciding the issue of service connection for hypertension, as they reflect that the Veteran suffers from essential hypertension. Thus, they contain sufficient information for a determination that hypertension is unrelated to service. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, the Veteran's statements, private medical records, and VA clinical records. Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes that 38 C.F.R. § 3.303(b) applies herein because the Veteran's claimed disability (hypertension) entails a "chronic disease" within the meaning of 38 C.F.R. § 3.309(a). See generally Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as hypertension, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on a Veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion The Veteran contends that his presently diagnosed hypertension is secondary to his service-connected type II diabetes mellitus. He has indicated that hypertension was initially diagnosed in the late 1990's. The service treatment records contain no diagnosis of or findings consistent with hypertension. On VA examination in August 2008, the examiner opined that the Veteran's hypertension was unrelated to his diabetes mellitus, as hypertension was diagnosed in the 1990's before the onset of diabetes mellitus. The examiner was under the impression that diabetes mellitus was diagnosed in 2005. In a September 2010 VA examination report, the examiner noted that diabetes mellitus was initially diagnosed by VA in March 2008. He opined, therefore, that hypertension that had its onset in 1999 was not secondary to the service-connected diabetes mellitus, as the Veteran's hypertension predated his diabetes mellitus. The examiner, in any event, found that the Veteran was suffering from essential hypertension. Therefore, the Veteran's hypertension was entirely unrelated to his service-connected diabetes mellitus. In an October 2010 letter, S.K., M.D., a private physician who had treated the Veteran between 1997 and 2001, asserted that the Veteran was first diagnosed with type II diabetes mellitus in 1997. The Veteran submitted an article gleaned from www.uptodate.com regarding the importance of early treatment for hypertension in patients with diabetes mellitus. At the outset, the Board observes that no hypertension was shown in service or in the first post-service year. Indeed, there is no evidence of hypertension until years after service. Consequently, service connection for the Veteran's hypertension cannot be granted based upon chronicity in service, continuous symptoms of hypertension from service separation to the present, or presumptively based upon diagnosis of a chronic disease (in this case hypertension) within one year of discharge. Because the facts in this case do not warrant service connection based on chronicity in service, continuity of symptomatology from service separation to the present, or based upon diagnosis within a year of discharge, the only way in which service connection for the Veteran's current hypertension can be established herein is if the evidence shows that the disease was incurred in service. The pertinent evidence herein includes the Veteran's assertions, the VA examination reports, information from Dr. S.K., and the article submitted by the Veteran. In weighing the evidence, the Board must consider the competency, credibility, and probative value of the evidence. As stated, the Veteran maintains that his hypertension is due to his service-connected diabetes mellitus type II. The Board cannot rely upon his assertions for although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), hypertension and its origins falls outside the realm of common knowledge of the lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Internet article submitted by the Veteran is of no probative value because it is not relevant to the issue at hand, which it that of the etiology of the Veteran's hypertension, as opposed to the subject of the article, which deals with the importance of treating hypertension in diabetics. Next, the Board assigns the opinions of the VA examiners little probative value to the extent that they relied on erroneous information as to the date of onset of the Veteran's diabetes mellitus. The VA examination reports indicate that hypertension had its onset in either 2005 or 2008. These dates are inaccurate. Dr. S.K., who treated the Veteran at the time that his diabetes mellitus was initially diagnosed, indicated that the diabetes mellitus has its inception in 1997. Any conclusion that the Veteran's hypertension is not secondary to the service-connected diabetes mellitus because hypertension predated diabetes mellitus carries no weight because the Veteran's diabetes mellitus most likely predated his hypertension, as apparent from Dr. S.K.'s statement. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The September 2010 VA examiner diagnosed essential hypertension. The Board notes that "essential hypertension" is defined as "hypertension occurring without discoverable organic cause." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 909 (31st ed., 2007). There is no competent medical evidence indicating that the Veteran's hypertension is not of the essential type. The Board, therefore, concludes that the Veteran is suffering from essential hypertension. Because "essential hypertension", by definition, has no identifiable cause, the Board cannot conclude that it is somehow related to service. Thus, service connection on a direct basis for the Veteran's hypertension is denied. 38 C.F.R. § 3.303. Similarly, because it has no identifiable cause, the Veteran's essential hypertension cannot be deemed to be caused by a service-connected disability. Thus, service connection for (essential) hypertension on a secondary basis is not warranted. 38 C.F.R. § 3.310. In sum, the entirety of the competent and probative evidence weights against the Veteran's claim. Thus, the evidence for and against the claim is not in relative equipoise, and the benefit of the doubt rule does not apply. Alemany, supra. As such, the appeal is denied. ORDER Service connection for hypertension is denied. REMAND A remand is required in this case to assist the Veteran with his claim. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). The Veteran is claiming that he suffers from erectile dysfunction secondary to his service-connected diabetes mellitus type II. The record contains VA opinions stating that erectile dysfunction is unrelated to his type II diabetes mellitus based on an erroneous understanding of the date of onset of diabetes mellitus, which had its inception in 1997. The VA examiners were under the impression that diabetes mellitus had its onset at some point between 2005 and 2008. A VA opinion that is based on erroneous information is entitled to no probative weight. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). Furthermore, when VA undertakes to provide a medical examination, it must ensure that such examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion based on inaccurate facts is not adequate. Because the Veteran was not afforded an adequate VA examination and opinion regarding the origins of his claimed erectile dysfunction, a new VA examination must be scheduled, as described in the second paragraph below. To ensure that the record is complete, all VA clinical records not already associated with the claims file must be added to the record. See 38 C.F.R. § 3.159(c)(2); Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990) (holding that all VA treatment records that could potentially be helpful in resolving a claim must be obtained); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Associate with the claims file all VA clinical records that are not already part of the record. 2. Schedule a VA medical examination for an opinion regarding the etiology of the Veteran's claimed erectile dysfunction to include its relationship with the service-connected diabetes mellitus type II, if any. Indeed, the examiner must opine regarding whether it is at least as likely as not (50 percent or greater likelihood) that the erectile dysfunction is due to service or to the service-connected diabetes mellitus type II, which was first diagnosed in 1997. Note: As used above, the term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In conjunction with the examination, the examiner must review all pertinent documents in the claims file, and the examination report must indicate whether requested review took place. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 3. After conducting the foregoing development and any other development deemed necessary, the RO should readjudicate the Veteran's claim of entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus type II, considering all the evidence of record. If the benefit sought remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and the appropriate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ C.L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs