Citation Nr: 1325076	
Decision Date: 08/07/13    Archive Date: 08/13/13

DOCKET NO.  07-33 208	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming


THE ISSUE

Entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus or posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Donohue, Counsel

INTRODUCTION

The Veteran served on active duty from October 1968 to May 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming.

In October 2010, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing has been associated with the Veteran's VA claims file.

In November 2010, April 2012 and November 2012, the Board remanded the Veteran's claim for additional development of the record. The case is once again before the Board. 


FINDINGS OF FACT

1. The Veteran's hypertension was not caused or aggravated by service-connected diabetes mellitus or PTSD.

2. The Veteran's hypertension was not manifest during service or within one year of separation.


CONCLUSIONS OF LAW

1. Hypertension is not proximately due to (causation or aggravation) a service-connected disease or injury. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2012).

2. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

After the evidence has been assembled, the Board is responsible for evaluating 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.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012).  

Indeed, 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.

Furthermore, the Board notes that it has reviewed all of the evidence in the 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 the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).  

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (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.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.

In the present case, VA issued a VCAA notice letter to the Veteran in May 2006.  This letter informed the Veteran of what evidence was required to substantiate his service connection claim and of his and VA's respective duties for obtaining evidence.  

The May 2006 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess.  

In short, the record indicates that the Veteran received appropriate notice pursuant to the VCAA.

The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  

In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. 

In this capacity, the Board remanded the Veteran's claim for additional development in November 2010, April 2012 and November 2012. 

Specifically, in November 2010, the Board remanded this case to the AMC in order to gather additional treatment records and obtain a medical nexus opinion.  

Following the Board's remand, the Veteran's VA treatment records were obtained and associated with his claims file and the requested medical nexus opinion was obtained in January 2011. 

In April 2012, the Board remanded the Veteran's claim in order to obtain a medical opinion from a specialist in cardiology.  While an additional medical opinion was obtained in May 2012, the opinion was not provided by a specialist and the appeal was remanded again in November 2012 in order to obtain the requested opinion.  This was accomplished in January 2013. 

The Board's remand instructions have been fully complied with.  See Stegall v. West, 11 Vet.App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). 

Further, the record contains the Veteran's service treatment records, VA treatment records, VA examination reports, and the October 2010 hearing transcript.  

The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. 

As the Board will discuss in its analysis, the Veteran was provided with VA examinations in October 2006 and January 2011.  Additional medical opinions were obtained in May 2012 and November 2012.  The reports of these examinations and opinions reflect that the clinicians reviewed the Veteran's past medical history, recorded his current complaints and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  Supporting rationale was also provided for the opinions proffered.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  

While the record does not reflect that the October 2006 examiner reviewed the Veteran's claims folder, the Veteran is not prejudiced thereby as the examiner considered medical history as reported by the Veteran which is consistent with that contained in his claims file.  

The Board therefore concludes that the examinations and opinions are adequate for adjudication purposes.  See 38 C.F.R. § 4.2 (2012).  

The Board additionally observes that all appropriate due process concerns have been satisfied.  See 38 C.F.R. § 3.103 (2012).  The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He exercised the option of a personal hearing and was afforded one in October 2010 as detailed in the Introduction. 

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained.  

II. Law and Regulations

In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).  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 or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).

In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 

Certain chronic disabilities, to include hypertension, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a '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.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet.App. at 448.  

Under section 3.310(b) of VA regulations, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service-connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b).

III. Analysis 

In this case, the Veteran does not assert that his hypertension manifested in service. See Hearing transcript, pg. 4.  Rather, he asserts that that his hypertension is secondary to his service-connected diabetes or, alternatively, his PTSD. See generally, the October 2010 hearing transcript.  However, because the RO considered entitlement to service connection on a direct basis, the Board will do so as well to prevent any prejudice to the Veteran.

VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).

The Veteran's service treatment records are negative for any diagnosis, complaint, or abnormal finding pertaining to hypertension.  On discharge from active duty in May 1971, the Veteran's vascular system was clinically normal.  His blood pressure at that time was 120/70.  No notation referable to the Veteran's vascular system was listed in the summary of defects and diagnoses.  He was deemed to be qualified for separation.

The Veteran has provided conflicting statements as to when his disability first began.  For example, in his April 2006 claim, the Veteran stated that his hypertension began in 2002.  During the October 2010 hearing, however, he testified that his disability began in 1995.  Finally, during an October 2006 VA examination, the Veteran reported that he has had hypertension for the past 20 years, which would place its onset in 1986. 

The Board observes that while receiving VA outpatient treatment in May 2006, the Veteran stated that he has had high blood pressure for the past 35 years, or since 1971.  To the extent the Veteran contends that his hypertension developed within one year of his separation from service, the Board finds such assertions to be not credible in light of the multiple conflicting statements the Veteran has made throughout the course of the appeal. 

Furthermore, as discussed above, the Veteran's vascular system was clinically examined and found to be normal in May 1971.  A review of the record reveals that the earliest diagnosis of hypertension comes from a May 2006 VA treatment record. 

The Board also observes that the record does not include any evidence suggesting that the Veteran's hypertension developed to a compensable degree within one year of his separation from service.  In fact, the record does not contain any blood pressure readings from this period.  Moreover, a review of the record reveals no indication that the Veteran's hypertension may be associated with his service. C.f. McLendon v. Nicholson, 20 Vet.App. 79 (2006).  Here, hypertension was not "noted" during service or within one year of separation.  In addition, there were no characteristic manifestations sufficient to identify the disease entity during service or within one year of separation.  38 C.F.R. § 3.303(b).  As such, service connection may not be granted on a direct basis or on a presumptive basis.  Nor may service connection be established based on continuity of symptomatology. 

With respect to the Veteran's secondary service connection theory of entitlement, the record reflects that the Veteran was granted service connection for type II diabetes mellitus in a September 2006 rating decision.  Service connection for PTSD was established in a May 2010 rating decision. 

In October 2006, the Veteran was afforded a VA examination to determine the etiology of his hypertension.  After conducting a physical examination and a clinical interview, the VA examiner stated that the Veteran's hypertension "is not caused by his diabetes nor is it partially contributed to at this time."  In explaining his opinion, the examiner noted that the Veteran's diabetes could not have caused his hypertension because his diabetes had its onset after the Veteran had developed hypertension.  It was also noted that the Veteran's diabetes "only shows mild microalbuminuria which is suggestive of developing kidney disease but is not sufficient renal disease that it would be causing hypertension." 

In November 2010, the Board observed that the phrasing of the VA examiner's opinion did not clearly denote or specify whether hypertension is aggravated by the service-connected diabetes.  As a result, the Veteran's claim was remanded in order to afford him an additional examination. 

In January 2011, after reviewing the claims file and conducting a clinical examination, a VA examiner stated that the Veteran's hypertension was not caused or aggravated by his diabetes mellitus.  Specifically, the examiner stated that "[i]n order for diabetes to cause hypertension, the diabetes needs to lead to renal dysfunction which then leads to hypertension."  In this case, however, it was noted that the Veteran's hypertension developed prior to his diabetes and while the Veteran "has some evidence of elevated microalbumin[,] his renal function remains normal."  Since the Veteran's "hypertension diagnosis predates [his] diagnosis of diabetes and [he] does not have renal dysfunction" the examiner concluded that the Veteran's hypertension was not caused by his diabetes mellitus. 

In explaining how he concluded that the Veteran's service-connected diabetes had not aggravated his hypertension, the examiner noted that the Veteran had remained on the same hypertension medications and dosage since he was diagnosed with diabetes.  The examiner reiterated that "the typical setting for hypertension worsening . . . diabetes is if the diabetes has led to renal dysfunction which has then led to worsening hypertension which is not the case in this Veteran."  As a result, the examiner concluded that the Veteran's service-connected diabetes had not aggravated his hypertension. 

The January 2011 VA examiner also opined that the Veteran's hypertension was not caused or aggravated by his service-connected PTSD. Specifically, the examiner stated that "there is no evidence in the medical literature that PTSD causes hypertension.  This claim lacks a pathophysiologic explanation, and, therefore . . . his hypertension was not caused by his service-connected PTSD."  The examiner also opined that the Veteran's PTSD was not aggravating his hypertension since his hypertension "has been maintained on the same dosage for several years without the need for adjustment."  Further, "there have been no blood pressure measurements when his PTSD is not well controlled and the Veteran "does not offer any home blood pressure measurements that correlate with periods of exacerbation of his PTSD."

Following the January 2011 VA examination, the Veteran submitted the abstract of a medical study entitled Hypertension in Relation to Posttraumatic Stress Disorder and Depression in the US National Comorbidity Survey.  While the entire article was not submitted for review, the abstract indicates that the authors found that "PTSD appears to be related to hypertension independent of depression."

The Veteran's VA treatment records also document that he had inquired whether his diabetes had caused high blood pressure.  The record reflects that the Veteran was informed that "it is difficult to impossible to make that determination.  Heart disease can certainly be related to diabetes as can kidney disease which can also affect blood pressure."  The Veteran was advised to see a specialist in order to answer his question.  See an October 2010 VA treatment record.

In light of the article abstract submitted by the Veteran, and the October 2010 treatment record, the Board remanded the Veteran's claim in order to obtain a medical opinion from a specialist in cardiology. 

In a May 2012 opinion, a VA examiner stated that the Veteran's hypertension was not due to or aggravated by his service-connected disabilities.  Specifically, the examiner reported that since the Veteran's hypertension pre-dates his diabetes, it is less likely than not that his diabetes had caused his hypertension.  It was also noted that although the Veteran "continues to have proteinuria and his renal lab values have recently changed[,] there is no . . . evidence in his medical treatment record that the change in renal function is related to diabetic nephropathy."  As a result, the examiner concluded that "there is not enough evidence to substantiate a diagnosis of diabetic nephropathy, and with no diagnosis of diabetic nephropathy[,] it is" less likely than not that his hypertension has been aggravated by his service connected diabetes.

With respect to the Veteran's contention that PTSD has caused or aggravated his hypertension, the May 2012 VA examiner stated "that in evidence based medicine, essential hypertension has not been related to anxiety and [PTSD] is an anxiety disorder." While stress can temporarily elevate blood pressure in all individuals, this is a normal response and such temporary elevation does not cause or aggravate hypertension.  It was also noted that "essential hypertension is a vascular disorder with associated systemic vascular resistance and would not be associated with PTSD."  The examiner then concluded that it was less likely than not that the Veteran's PTSD has caused or aggravated his hypertension. 

In January 2013, a VA cardiologist reviewed the Veteran's claims file and stated that "although there is a strong association between hypertension and PTSD, the clinical evidence for a definitive causal relationship is lacking."  In this case, the examiner noted that the Veteran's PTSD predated his hypertension and, therefore "it is less likely than not (i.e., probability less than 50%) that the Veteran's hypertension is secondary to his PTSD." The examiner also noted that the Veteran's hypertension has been "relatively well controlled throughout the years without significant increase in his anti-hypertensive medications" and clinical findings, such as a 2007 echocardiogram which did not reveal hypertensive heart disease, "make it less likely than not (less than 50 percent probability) [that the Veteran's] hypertension has been made chronically worse (aggravated) by his longstanding PTSD."

With regard to the Veteran's hypertension and diabetes, the VA cardiologist stated that the record clearly states that the Veteran's hypertension predates his diagnosis of diabetes, and therefore, "it is less likely than not (i.e., probability less than 50%)" that his hypertension is caused by his diabetes."  It was also noted that the Veteran's diabetes had not worsened his hypertension since his hypertension "has been reasonably well controlled without significant increase in his anti-hypertensive medications."  As a result, the examiner opined that "it is less likely than not (i.e., probability less than 50%) [that] his hypertension has been made chronically worse (aggravated) by his type II diabetes."

At this juncture, it is important to note that the Board has the authority to 'discount the weight and probity of evidence in the 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). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet.App. 30 (1993), and Colvin v. Derwinski, 1 Vet.App. 171 (1991).

In this case, the Board places the greater weight of probative value on the opinions of the VA examiners and physicians who have repeatedly stated that the Veteran's hypertension is not caused or aggravated by his service-connected PTSD or type II diabetes mellitus. These opinions have been supported by reasons and bases and have included references to the Veteran's medical history and test results. 

With respect to the medical journal abstract submitted by the Veteran, the Board notes that medical treatise evidence can, in some circumstances, constitute competent evidence. See Wallin v. West, 11 Vet.App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, the Board finds this evidence to be of little probative value.  As noted by the VA physician who provided the January 2013 VA opinion, while there is a strong association between hypertension and PTSD, the clinical evidence for a definitive casual relationship is lacking.  In this capacity the Board notes that it was unable to review the entire medical article as the Veteran's representative had only submitted the article abstract.  As such, this evidence consisted of a general assertion without any analysis pertaining to the Veteran's claim. 

The Board has also considered the Veteran's assertion that his hypertension is caused or aggravated by his PTSD or diabetes mellitus. However, his opinion is accorded no greater evidentiary value than that of the medical journal abstract.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  His opinion is lacking in specifics and detail and is therefore accorded little probative value. 

Based on the above, the Board finds the opinions of the VA examiners to be more probative than the general medical treatise article and the Veteran's assertions.  The Board finds that the most probative evidence establishes that there is no relationship (causation or aggravation) between the Veteran's hypertension and his service-connected diabetes mellitus or PTSD and that there is no relationship between the Veteran's hypertension and his active duty service. Therefore, the preponderance of the evidence is against the claim for service connection.  Because there is no approximate balance of positive and negative evidence, the rule affording the Veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 2002); see Dela Cruz v. Principi, 15 Vet.App. 143 (2001); see also 38 C.F.R. § 3.102 (2012).

ORDER

Service connection for hypertension, to include as secondary to diabetes mellitus and PTSD, is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs