Citation Nr: 1324561 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-16 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes or herbicide exposure. ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2009 of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office that denied the Veteran's claim for service connection. The Veteran was previously represented by both the Vietnam Veterans of American and by a private attorney. In February 2012, the Veteran responded that he no longer wanted to be represented by either entity and wished to proceed pro se. The Board remanded the Veteran's claim in November 2010, April 2012, and January 2013. The development ordered by these remands has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a March 2011 letter, the Veteran stated that his symptoms were getting worse, complaining specifically of symptoms related to his service-connected diabetes and posttraumatic stress disorder, as well as erectile dysfunction. Thus, the issues of entitlement to an increased rating for diabetes and PTSD and whether new and material evidence has been presented to reopen a claim for service connection for erectile dysfunction have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran did not suffer from hypertension in service or for many years thereafter. 2. The Veteran's hypertension is not related to his active service, including herbicide exposure, nor is it secondary to or aggravated by his service-connected diabetes. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A July 2008 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in an April 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). VA examinations were conducted in June 2007, December 2008, and April 2013, and VA opinions were obtained in November 2010 and April 2012. In its November 2010 remand, the Board found the December 2008 examination to be inadequate because it did not include a discussion of aggravation of the Veteran's hypertension by his service-connected diabetes. The Board's April 2012 and January 2013 remands did not find that the opinions obtained prior to these remands were inadequate, but instead found that the Veteran had not been examined in conjunction with the opinions as was requested. The April 2013 examination and the November 2010 and April 2012 opinions are adequate, as they address the specific questions raised by the Board in its remands, and they contain sufficient information to determine whether service connection for the Veteran's claimed condition is warranted. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Entitlement to Service Connection for Hypertension Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1377. 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran currently suffers from hypertension. VA examinations of June 2007 and April 2013 diagnosed the Veteran as suffering from this condition. His VA treatment records also reflect hypertension diagnoses. There is no evidence that the Veteran suffered from hypertension during his active service. A review of his service treatment records reveals no diagnosis of or treatment for hypertension. His August 1970 separation examination recorded a blood pressure reading of 122/68, and he was not reported to be suffering from hypertension or any other cardiac condition. On his August 1970 report of medical history at separation, the Veteran denied suffering from high or low blood pressure. The Veteran believes that his hypertension could be related to his in-service herbicide exposure; in a July 2007 statement, the Veteran contended that his high blood pressure was due to Agent Orange exposure. The Veteran's DD-214 reflects that he served in Vietnam, so it is presumed that he was exposed to herbicides. Hypertension, however, is not listed among the conditions presumed to be secondary to herbicide exposure. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Service connection on a presumptive basis is not warranted. Notwithstanding the foregoing, the Veteran may still establish service connection for hypertension based on exposure to Agent Orange with proof of actual causation. See Combee, 34 F.3d at 1043-44. There is, however, no evidence that the Veteran's hypertension is directly related to his active service, including his exposure to herbicides. The examiner from the Veteran's April 2013 VA examination noted that herbicide exposure is not listed as a cause of hypertension in recognized medical references. He also noted that the earliest date of diagnosis of hypertension was 1983, some 13 years after the Veteran's active service. He thus concluded that the Veteran's hypertension is unlikely to be related to his active service, including his exposure to herbicides. The examiners from both the November 2010 and April 2012 VA opinions similarly concluded that it was less likely than not that the Veteran's hypertension was related to his active service, including Agent Orange exposure. The November 2010 opinion noted that there is no evidence that Agent Orange exposure is a risk factor for the development of hypertension. The examiner from the April 2012 VA opinion noted that there was no evidence that the Veteran suffered from hypertension during his active service, and that he had a normal blood pressure at his separation physical. The examiner also stated that there is no evidence in the most current medical literature that links hypertension with herbicide exposure of any kind, including Agent Orange. To the extent that the Veteran contends his hypertension is related to service or his in-service herbicide exposure, he is not competent to offer this opinion. Determining the etiology of hypertension requires specialized education, training, or experience and is not susceptible to lay observation. Jandreau, 492 F.3d at 1376-77. The Veteran's statements alone may not serve as the requisite nexus opinion in establishing service connection for hypertension. The Veteran also contends that his hypertension may be related to his service-connected diabetes. The Veteran advanced this argument in his February 2009 notice of disagreement and his April 2009 substantive appeal. Pursuant to VA regulation, service connection may be granted for a disability shown to be proximately due to or the result of a service-connected disorder, or for a disease or injury that is aggravated by a service-connected disability. 38 C.F.R. § 3.310 Here again, there is no competent evidence that the Veteran's hypertension is secondary to or aggravated by his service-connected diabetes. The November 2010 VA opinion concluded that it is unlikely that the Veteran's hypertension is etiologically related to his diabetes, noting that there is no evidence in the medical literature that supports a cause and effect relationship between diabetes and hypertension. The examiner further stated that there was clear evidence that the Veteran's hypertension preexisted his diabetes. The examiner who provided the April 2012 VA opinion concluded that it is less likely than not that the Veteran's hypertension is proximately due to or the result of his diabetes. He noted that a review of the Veteran's claims file found that the Veteran had normal kidney values on his lab tests. He stated that in the absence of renal failure, there is no link between hypertension and diabetes. He further stated that he agreed with the November 2010 examiner's statement that there is no evidence in the medical literature that diabetes causes hypertension or that it aggravates hypertension. Finally, the examiner from the April 2013 examination also concluded that it is unlikely that the Veteran's hypertension is related to or aggravated by his diabetes. He cited to medical literature noting that diabetes is not listed as a secondary cause of systolic and diastolic hypertension. He stated that diabetes does not cause hypertension in a patient with normal renal function, and that the Veteran's renal function is normal. He also noted that the Veteran's hypertension has been relatively stable in recent years, as reflected by the Veteran's medical record. Accordingly he stated that in the absence of significant renal dysfunction, it is unlikely that the Veteran's hypertension is caused by, due to, or aggravated by his service-connected diabetes. The only evidence in support of the Veteran's contention is his statements. The Veteran is not competent to state that his hypertension is secondary to his diabetes, as making this conclusion requires specialized education, training, or experience and is not susceptible to lay observation. Jandreau, 492 F.3d at 1376-77. The Veteran's statements alone may not serve as the requisite nexus opinion in establishing secondary service connection for hypertension. The preponderance of the evidence is against the claim for service connection for hypertension; there is no doubt to be resolved; and service connection for hypertension is not warranted. ORDER Entitlement to service connection for hypertension is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs