Citation Nr: 1325329 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 07-24 179A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from January 1967 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas This matter was previously before the Board in January 2011 and September 2012 when it was remanded for further development. It has now returned to the Board for further appellate consideration. FINDINGS OF FACT 1. The earliest clinical evidence of a diagnosis of hypertension is more than a decade after separation from service. 2. There has been no demonstration by competent medical, nor competent and credible lay, evidence of record, that the Veteran's hypertension is causally related to, or aggravated by, active service, to include herbicide exposure. 3. The probative evidence of record is against a finding that the Veteran's hypertension is causally related to, or aggravated by, a service-connected disability. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to a service-connected disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in June 2006. VA has a duty to assist the appellant in the development of the claim. The claim file includes service treatment records (STRs), VA and private medical records and correspondence, a transcript of a webcast, and the statements of the Veteran in support of the claim. The Board has considered the statements and perused 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 for which VA has a duty to obtain. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that an adequate VA examination/opinion is of record. The Board has obtained clinical opinions along with supplemental reports. The opinions are predicated on consideration of the Veteran's disabilities, his symptoms, and his medical history. Adequate rationale has been provided. The Veteran has alleged that perhaps a second clinical opinion was obtained because the Board is "biased" against him. The Board is not biased against the Veteran; additional opinions were requested to ensure that VA had complied with its duty to assist the Veteran. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service Connection on a secondary basis Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). During the course of this appeal, VA amended 38 C.F.R. § 3.310 effective October 10, 2006). See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). Presumptive service connection - herbicide exposure A Veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975. The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson's disease, multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran is service connected for diabetes mellitus and coronary artery disease (CAD). The Veteran contends that his nonservice-connected hypertension is caused by, or aggravated by, a service-connected disability. For purposes of thoroughness, the Board has considered whether the Veteran's hypertension warrants service connection on a direct incurrence basis or on a secondary basis. The Veteran had active military service from January 1967 to January 1987. Health questionnaires for dental treatment purposes, signed by the Veteran in both 1983 and 1985, reflect that he did not check that he had high blood pressure. The Veteran's report of medical examination for retirement purposes, dated in October 1986, reflects that the Veteran's blood pressure was 120/70. In addition, on his report of medical history, the Veteran denied that he had ever had high or low blood pressure. An August 2006 VA examination report reflects that the Veteran's hypertension was diagnosed when he was in his early to mid 50s. The Veteran was born in 1944; thus, he would not have reached his 50s until more than seven years after separation from service. In sum, the evidence of record is against a finding that the Veteran had hypertension in service. In addition, there is no competent clinical opinion of record that the Veteran's hypertension is causally related to, or was aggravated by, active service. More than a decade after separation from service, in September 1998, the Veteran had a blood pressure reading of 150/66. He also had high glucose levels in 1998, for which he was not recommended diet or medications at that time. (See January 1998 clinical record.) Several clinical records reflect that the Veteran's diabetes mellitus was under control with medication (e.g. See June 2001, August 2001, October 2001, August 2002, March 2003, and June 2005 records). A March 2004 clinical record reflects that his CAD. An August 2006 VA examination report reflects the opinion of the examiner that hypertension has not been found by authorities to be caused by diabetes. An April 2008 VA examination report reflects that the Veteran had normal renal function. It was noted that he had benign essential hypertension. It also noted that the Veteran had asymptomatic CAD. The examiner opined that it is "unlikely that the Veteran's hypertension is related to his diabetes mellitus. According to standard references such as, Harrison's Principals of Internal Medicine, diabetes is not a cause of hypertension." A February 2011 VA opinion is also of record. It reflects that the physician, Dr. M.H., reviewed the claims file as well as the 2008 VA examination report. He stated, in pertinent part, as follows: It is certain that the veteran's hypertension is not caused by his service connected coronary artery disease, as there has never been any evidence that coronary artery disease causes hypertension. Diabetes has never been found to cause hypertension according to all standard textbooks of internal medicine. Similarly, it is unlikely that the veteran's coronary disease and diabetes have aggravated the hypertension, as it is a separate disorder, unrelated to the diabetes and coronary disease, with a clearly understood mechanism. A February 2012 VHA opinion by Dr. D.W., a cardiologist, is also of record. It reflects that Dr. D.W. reviewed the clinical records and medical literature cited by the Veteran. Dr. D.W. stated, in pertinent part, as follows: I find no clear evidence that the onset of diabetes preceded the onset of hypertension. Further, I find no clear evidence that diabetes is a direct cause of hypertension, but rather that the two illnesses are associated and that one can contribute to the worsening of the other. Based on the these findings, I conclude that the veteran's hypertension is less likely than not a result of his diabetes. A supplemental opinion by Dr. D.W. was provided in May 2012. The May 2012 opinion by Dr. D.W. reflects that it is less likely than not that the Veteran's hypertension is caused by, or aggravated by, diabetes or CAD. He stated as follows: Regarding diabetes and hypertension, while research has shown a correlation with these illnesses, I am not aware of any research demonstrating a cause and effect relationship, nor a direction of causality, should it exist. In the absence of such evidence, therefore, it is my opinion that the veteran's hypertension is less likely than not caused or aggravated by his service connected disabilities. Regarding hypertension and coronary artery disease (CAD), I ascertain that the diagnosis of CAD was made on the basis of an abnormal nuclear stress test in 2006. Of note, his electrocardiogram does not have findings consistent with a prior infarction of the inferior wall of the heart and I cannot find report of a cardiac catheterization in his file, which would be the preferred test to confirm the diagnosis of CAD. Assuming the CAD diagnosis is accurate, it occurred many years after his diagnosis of hypertension and therefore is it my opinion that the veteran's hypertension was not caused by service connected coronary artery disease. Lastly, as noted above with the connection between hypertension and CAD, I am not aware of any research demonstrating a cause and effect relationship, nor a direction of causality, should it exist. In the absence of such evidence, therefore, it is my opinion that the veteran's hypertension is less likely than not aggravated by his service connected CAD. In an August 2012 statement, the Veteran stated that Dr. D.W., in February 2012, stated that hypertension and diabetes can contribute to the worsening of the other, and that, therefore, the Veteran believes that he is entitled to service connection for hypertension. The operative word in the February 2012 opinion is "can." An opinion which uses the term "can" is too speculative in nature to be probative. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). Moreover, as discussed above and below, Dr. D.W. submitted supplemental opinions. In the August 2012 statement, the Veteran also stated that Dr. D.W. was incorrect when he stated that the diagnoses of diabetes and hypertension were effectively concurrent. The clinical evidence of record reflects that the Veteran was diagnosed with diabetes in 1999, and that he had blood pressure readings in the hypertensive range in 1998. The Veteran contends that the onset of the diseases was 4 years apart; however, this is not supported by the evidence of record. Regardless, Dr. D.W. as discussed below, has indicated that he has reviewed the pertinent records and his opinion is based on the Veteran's numerous clinical findings, and not merely the onset dates. A supplemental opinion by Dr. D.W. was also provided in April 2013. The April 2013 opinion is extremely probative of the issue at hand as it reflects that Dr. D.W. considered numerous clinical records from a period of many years, and provided an adequate rationale for his opinion. Dr. D.W. considered the Veteran's hypertension assessments, CAD symptoms, kidney function test results, and diabetes mellitus control and medication. Dr. D.W. opined that the test results and clinical findings demonstrate normal kidney function, CAD that is controlled and asymptomatic, and diabetes that is well controlled on oral medication. He opined that "[b]ased on these clinical findings, it is my opinion that it is less likely as not that the Veteran's service-connected disabilities of CAD and diabetes chronically aggravate his hypertension." In sum, the probative clinical evidence of record is against a finding that the Veteran's hypertension manifested in service, or that it is causally related to, or aggravated by, service or a service connected disability. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to whether his diabetes and/ or CAD have caused or aggravated his hypertension. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the causes of hypertension and the effect of controlled diabetes and asymptomatic CAD on hypertension. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In July 2011, the Veteran submitted a statement that he has been taught that a person with diabetes is at a higher risk (by 5%) of getting hypertension than a person without diabetes. He reported that he was employed for numerous years at a hospital and that his duties included that of a treatment team executor responsible for treatment planning. He also stated that he was the executor of the geriatric unit and that many patients had a diagnosis of diabetes and hypertension. He further stated that he had received training 2 to 3 times a week on mental and physical conditions and treatment. The fact that the Veteran was employed in a hospital in an administrative role, and that he received training in "mental and physical conditions and treatments," does not mean that his level of competency in medical issues rises to the level of Dr. D.W. and Dr. M.H. The Board finds that it does not. Dr. D.W. is a cardiologist, and has advanced training and experience (Diplomate) in Internal Medicine, Cardiovascular Diseases, Nuclear Cardiology. The Veteran has not been shown to have such training and expertise. The Board also notes that the claims file includes a written "webcast transcript" on hypertension. The webcast is not specific to the Veteran or his situation. It notes that "people with diabetes have a tendency to get high blood pressure." It also states that there "seems to be a metabolic link between diabetes and high blood pressure due to a resistance in the way the body reacts to insulin, and insulin is not only a good thing, because it causes sugar to go into cells, but it has some perhaps bad effects in the sense that it causes much salt retention because of its effect on the kidney." The Board finds that the webcast transcript does not rise to the level of a medical treatise and has little, if any, probative value. Assuming arguendo, that the webcast transcript rises to the level of a medical article or medical treatise, a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). See also Sacks v. West, 11 Vet. App. 314 (1998). In short, articles and treatises tend to be general in nature and tend not to relate to the specific facts in a given veteran's claim. In the present case, the webcast transcript submitted by the appellant falls into this general category. It does not provide in-depth information on factors such as duration of controlled diabetes versus uncontrolled diabetes. In addition, it does not discuss whether or not there is aggravation of hypertension when kidney function is found to be normal, as in the Veteran's case. Finally, it is less probative that the opinions of Dr. M.H. and Dr. D.W., which considered the specific aspects of the Veteran's medical condition. In a statement received by VA in May 2012, the Veteran contended that he is entitled to service connection on a presumptive basis due to his exposure to herbicides in Vietnam. Hypertension is not a disability that may be presumed to be related to herbicide exposure. VA has specifically determined that the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), See Note 3. In other words, VA specifically excluded hypertension as being a disability for which the presumption of service connection due to herbicide exposure applies. Thus, even if the Veteran did have service in Vietnam, presumptive service connection is not warranted on the basis of herbicide exposure. In sum, there is no competent credible evidence of record that the Veteran had hypertension in service or within one year after separation from service. In addition, the most probative evidence of record is against a finding that his hypertension is caused by, or aggravated by, a service-connected disability, to include diabetes mellitus and/or CAD. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, but does not find that the evidence is of such approximate balance as to warrant its application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for hypertension, to include as secondary to a service-connected disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs