Citation Nr: 1325050 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 08-19 839A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for a neurological disorder of the upper extremities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from March 1968 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran submitted a Notice of Disagreements (NOD) with this determination in October 2007 and perfected his appeal in July 2008. The Board recognizes that the RO characterized the Veteran's neurological disability of the upper extremities as entitlement to service connection for peripheral neuropathy of the upper extremities. However, a review of the record reflects that the Veteran's neurological symptoms of the upper extremities (pain, numbness, and tingling) have been diagnosed as multiple different disabilities in his private and VA treatment records, to include radiculopathy, nerve foraminal stenosis, carpel tunnel syndrome, myelopahty, and nerve root impingement. The Board observes that VA has an obligation to liberally construe the pleadings of a claimant to discern all issues raised in the record. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Thus, in light of the Veteran's assertions, the Board will consider whether service connection is warranted for any current neurological disability of the upper extremities. For this reason, the Board finds that the Veteran's neurological disability claim is more appropriately framed as the broader issue indicated on the title page of this decision, rather than as a specific condition. In September 2010, the Board remanded the issues on appeal for further examination. This development has now been completed, and the claim of service connection for hypertension is ready for review. Regrettably, as outlined below, further development is necessary before the Board can proceed on the issue of service connection for a neurological disability of the upper extremities. The Board notes that the appeal originally included the claims of service connection for peripheral neuropathy of the left and right lower extremities. The Appeals Management Center (AMC) granted service connection for these disabilities in a January 2012 rating decision. This decision constitutes a full grant of benefits. Therefore, the claims of service connection for peripheral neuropathy of the left and right lower extremities are no longer on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. The issue of service connection for a neurological disability of the upper extremities 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's hypertension was not present in service, was not manifested within one year thereafter, and is not otherwise related to service. 2. The Veteran's hypertension was not caused by or aggravated by his service-connected diabetes, low back, or right shoulder arthritis. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to service-connected diabetes mellitus, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in June 2006 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additional March 2008 and June 2008 letters were sent to the Veteran that addressed all notice elements as pertains to secondary service connection. Although these letters were delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the August 2009 and January 2012 supplemental statement of the cases (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining VA and private medical records and providing the Veteran with VA examinations in November 2008 and January 2011. The Board notes that in August 2012, the Veteran submitted a VA Form 21-4142 for the VA to obtain medical records from Dr. Black and private treatment records pertaining to his neurological disabilities. In a January 2012 report of contact with the Veteran, the VA informed the Veteran that the 180 day time limit had passed for the Authorization and Consent form and he would have to submit another release in order for these records to be obtained. The Veteran stated that he wished for the VA to go ahead and decide his appeal with the evidence of record. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist is not always a one-way street). Finally, as acknowledged above, the Board remanded this case in September 2010 for additional development. Because the AMC requested additional information regarding any outstanding records and also obtained VA opinions sufficiently addressing whether the Veteran's hypertension was related to service or was secondary or aggravated by service-connected disabilities, the Board is satisfied that there has been substantial compliance with the September 2010 remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order). II. Service Connection 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: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may 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. Certain listed disabilities, to include hypertension, may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Hypertension means persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90. See Dorland's Illustrated Medical Dictionary at 889 (30th ed. 2003). For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 Veteran. Hypertension The Veteran seeks entitlement to service connection for hypertension. The Veteran contends that his hypertension is secondary to his service-connected diabetes mellitus. The Veteran's February 1972 separation examination noted that the Veteran's blood pressure was 124/68. The Veteran's service treatment records were void of any complaint of, treatment for, or diagnosis of hypertension. Private treatment records dating back to February 2002 show elevated blood pressure readings and an ultimate diagnosis of hypertension. A March 2006 Florida Neurology treatment record also noted that the Veteran had borderline hypertension. VA treatment records show that the Veteran was diagnosed with and treated for hypertension. A January 2009 VA record notes that the Veteran was started on a new medication for his hypertension. Recent records show that the Veteran's hypertension was at goal on medication. The Veteran was afforded a VA examination in November 2008. The Veteran reported that his hypertension started around three years before the question of possible diabetes arose. He took blood pressure medication for a short period in 2005 for a reported 160/110 reading, but none lately. The Veteran was diagnosed with idiopathic hypertension, definitely aggravated by obesity and sleep apnea. The examiner stated that the Veteran's hypertension began at least three years before he was found to have elevated sugars. Therefore, it seemed less likely than not that his hypertension was related to elevated blood sugars. The Veteran was afforded another VA examination in January 2011. The Veteran reported that he was never on any blood pressure medications until 2005. He stated that his blood pressure was elevated prior to 2005. However, he reported that he was placed on blood pressure medications for 30 days around 2002. After 30 days, his blood pressure improved and it was discontinued. His hypertension was currently asymptomatic and stable with medication. The examiner concluded that the Veteran's essential hypertension was less likely than not caused by or a result of service, diabetes mellitus, lumbar degenerative joint disease, or right should degenerative joint disease. Hypertension is usually primary or idiopathic. Secondary hypertension is usually related to renovascular or endocrine causes, not musculoskeletal pathology, such as back or shoulder arthritis. The Veteran currently had no objective evidence of diabetic nephropathy. The Veteran's service medical records were negative for a diagnosis or treatments for hypertension. There was no objective evidence of aggravation beyond a normal progression. Therefore, Veteran's hypertension was idiopathic and it was not related to his service, diabetes mellitus, or low back or right shoulder arthritis. The Board finds that the weight of the competent evidence shows that the Veteran is not entitled to service connection for hypertension. Although he has a current diagnosis of hypertension, the existing medical evidence does not show that this condition was manifested in service, within a year from being discharged from service, or is otherwise related to service. Concerning in-service incurrence, the Veteran's service treatment records are completely unremarkable for any relevant complaints, treatment, or diagnosis of hypertension. Additionally, the Veteran's blood pressure reading at discharge (124/68) does not qualify as clinical hypertension pursuant to VA regulations. There is no objective indication of hypertension while he was in service. This is probative evidence against the notion that the Veteran has hypertension as a direct result of disease or injury incurred in or aggravated by his military service. See Struck v. Brown, 9 Vet. App. 145 (1996). Additionally, there is no medical evidence of record showing that hypertension was manifested during his first post-service year. Additionally, private treatment records do not note a history of elevated blood pressure and a diagnosis of hypertension until February 2002. Therefore, there is no competent and credible evidence of record showing that hypertension was manifested during the Veteran's first year following discharge from active duty, and presumption service connection for hypertension as a chronic disease is not warranted. See 38 C.F.R. §§ 3.307, 3.309. The Veteran also has failed to provide any objective indication of hypertension until February 2002 private treatment records, more than three decades after his military service ended. The lapse of so many years after his separation from service and the first documented suggestion of this claimed disorder is also probative evidence to be considered in determining whether this claimed disability may be traced back to his military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Of equal or even greater significance, while the Veteran has submitted medical evidence indicating he has been diagnosed with hypertension, there simply is no medical evidence of record etiologically linking hypertension to the Veteran's military service. As previously mentioned, the November 2008 VA examiner concluded that the Veteran was diagnosed with idiopathic hypertension, definitely aggravated by obesity and sleep apnea. The examiner stated that the Veteran's hypertension began at least three years before he was found to have elevated sugars. Therefore, it seemed less likely than not that his hypertension was related to elevated blood sugars. Additionally, the January 2011 VA examiner also concluded that the Veteran's essential hypertension was less likely than not caused by or a result of service, diabetes mellitus, lumbar degenerative joint disease, or right should degenerative joint disease. Secondary hypertension is usually related to renovascular or endocrine causes, not musculoskeletal pathology, such as back or shoulder arthritis. The Veteran's service medical records were negative for diagnosis or treatments for hypertension. There was no objective evidence of aggravation beyond a normal progression. Therefore, Veteran's hypertension was idiopathic and it was not related to his service, and it was not otherwise caused by or aggravated by his service-connected disabilities of diabetes mellitus, or low back, or right shoulder arthritis. The Board has carefully considered the Veteran's assertions that his hypertension is related to his service-connected diabetes mellitus. However, as a layperson with no demonstrated medical training or experience, he is not competent to give a medical opinion on the complex medical question of whether his hypertension is caused or aggravated by his diabetes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg). The Board acknowledges that the Veteran is competent to give evidence about the symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, the Board rejects the Veteran's unsubstantiated lay contentions because medical evidence in the file shows his hypertension did not have its onset in-service, but first manifested more than three decades after service. Additionally, contrary to the Veteran's assertions and as stated in the VA medical opinions above, the competent evidence establishes that the Veteran's hypertension was also not caused or aggravated by his service-connected disabilities. The VA examiners' opinions noted above are based on review of the claims folder, including the Veteran's service treatment records, and the opinions thoroughly discuss the Veteran's pertinent in-service and post-service medical records. The VA examiners offered a detailed explanation of the rationale for the opinions rendered that incorporates both the facts of the Veteran's case and the pertinent medical principles. Given the VA examiners' access to the claims folder and the thoroughness and detail of the opinions, the Board finds these opinions to be highly probative in determining whether service connection for hypertension is warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C.A. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for hypertension, to include as due to service-connected diabetes mellitus, must be denied. ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus, is denied. REMAND A review of the record discloses further development is needed with respect to the Veteran's claim of entitlement to service connection for a neurological disability of the upper extremities. The Veteran contends that his neurological symptoms of the upper extremities are due to Agent Orange exposure from his active duty in Vietnam. Additionally, the Veteran contends that his neurological symptoms of the upper extremities are secondary to his service-connected diabetes mellitus, lumbar spine disability, or right shoulder disability. The Veteran served on active duty from March 1968 to March 1972, including a tour in Vietnam from February 1969 to February 1970. It therefore is presumed that he was exposed to Agent Orange or other herbicide agent during that service in Vietnam. The current law shows that acute and subacute peripheral neuropathy is on the list of diseases presumptively associated with said exposure, even if there is no record of the disease in service. 38 U.S.C.A. § 1116 ; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e) , Note 2; Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). [The Board, however, is mindful that VA is proposing to amend §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy" and removing Note 2 to § 3.309(e), which currently requires, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under these proposed amendments, peripheral neuropathy would still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it would no longer need to be transient.] Significantly, the availability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving exposure to Agent Orange). However, an opinion as to direct service connection for the Veteran's neurological disability of the upper extremities based on exposure to Agent Orange has not been obtained. Additionally, the Veteran was afforded a peripheral nerve VA examination in January 2011. He reported such symptoms as numbness and burning in the upper extremities since the 1980's. He currently reported numbness of the upper extremities at the VA examination. After examining the Veteran, the VA examiner concluded that there was no evidence of peripheral neuropathy of the upper extremities. The examiner provided a negative etiology opinion pertaining to the Veteran's carpal tunnel syndrome. However, the examiner concluded that the Veteran's test results suggested bilateral C-7 radiculopathy in the past, however, this condition was no longer active. In a claim for service connection, the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Private treating physicians, the April 2006 MRI report, and VA examiners concluded that the Veteran had such diagnoses as polyneuropathy, peripheral neuropathy of the hands, moderate to severe nerve root impingement, neural foraminal stenosis, myelopahty, and bilateral upper extremity C4-8 radiculopathy. Thus, notwithstanding the January 2011 VA examiner's findings of a lack of a current disability (peripheral neuropathy and C-7 radiculopathy), the Board finds that sufficient evidence exists to indicate that the Veteran has been diagnosed with multiple neurological disabilities of the upper extremities throughout the record and pendency of the appeal that may be associated with his time in-service and/or his service-connected disabilities, triggering the duty to assist. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, because the Board finds that the January 2011 VA examiner's opinion is inadequate, the Board finds it necessary to remand the Veteran's claim of service connection for a neurological disability of the upper extremities for an additional VA examination and etiological opinion as to all of his diagnosed neurological disorders in order to fully and fairly assess the merits of the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA takes action to furnish a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the case is REMANDED for the following actions: 1) Any aadditional pertinent records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2) Schedule the Veteran for a VA examination to determine whether any of his current neurological disabilities of the upper extremities, to include radiculopathy, nerve foraminal stenosis, carpel tunnel syndrome, myelopathy, or nerve root impingement, are related to the Veteran's service or service-connected disabilities. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated studies should be performed, and all findings should be reported in detail. Even if a current neurologic disorder is no longer active, the VA examiner should provide an opinion as to the following: (a) whether it is at least as likely as not that any diagnosed neurological disability of the upper extremities shown throughout the claim period, i.e. since March 2006 (to include radiculopathy, nerve foraminal stenosis, carpel tunnel syndrome, myelopathy, and nerve root impingement) is related to his active military service, to include as due to his presumed exposure to herbicides during service. For purposes of making this determination, the examiner should accept as true that the Veteran was exposed to herbicides during service; and (b) whether it is at least as likely as not that any diagnosed neurological disability of the upper extremities shown throughout the claim period, i.e. since March 2006 (to include radiculopathy, nerve foraminal stenosis, carpel tunnel syndrome, myelopathy, and nerve root impingement) is (i) caused and/or (ii) aggravated (i.e., permanently worsened beyond the natural progress of the disease) by his service-connected disabilities, to include diabetes mellitus, lumbar spine degenerative joint disease, and right shoulder degenerative joint disease. Please specifically address whether there was any increase in severity of the Veteran's neurological disabilities of the upper extremities that were proximately due to or the result of the Veteran's service-connected disabilities, to include lumbar spine degenerative joint disease and right shoulder degenerative joint disease. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claim. If the issue remains denied, the AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). _____________________________________________ K. GIELOW Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs