Citation Nr: 1327913 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 05-08 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for hypertension, to include as secondary to the service-connected coronary artery disease and diabetes mellitus, type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from October 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The case was remanded several times, most recently in May 2013 to obtain an addendum medical opinion from a January 2011 VA examiner. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT Hypertension was not present during service, was not manifest within a year of separation from service, and the currently diagnosed hypertension did not develop as a result of any incident during service, including the service-connected coronary artery disease and diabetes mellitus, type II. CONCLUSION OF LAW Hypertension was not incurred or aggravated in service, and is not proximately due to or the result of the service-connected coronary artery disease and diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2012); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The notice 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. Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in a letter dated in December 2003 regarding the type of evidence necessary to establish his claim. He was instructed how to establish service connection. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. Although the letter did not notify the Veteran of the criteria for assigning a disability rating and an effective date, the Veteran has not been prejudiced as a result, as the claim is being denied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained January 2004, August 2009 and January 2011 with addendum opinions in January 2011, April 2012, August 2012, January 2013 and July 2013. 38 C.F.R. § 3.159(c)(4). The VA examinations and addendum opinions obtained in this case are collectively sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), when a chronic condition is present, a claimant may establish the second and third elements by demonstrating continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases (e.g., hypertension) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Furthermore, any disability that is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). In this regard, the Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of this appeal. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. The Veteran's STRs show that he had blood pressure of 130/80 at his September 1968 pre-induction examination. In his accompanying report of medical history, the Veteran reported high blood pressure. The examiner questioned whether the Veteran's increase in blood pressure was in part secondary to anxiety. In February 1970, he was evaluated for high blood pressure. The record shows that just prior to entering service, the Veteran had a complete work-up. No cardiac disease was found and apparently there was some degree of blood pressure elevation secondary to anxiety. At the beginning of the evaluation, the Veteran's blood pressure was 170/100; at the end, it was 150/80. He was diagnosed with mild labile hypertension. Three blood pressure readings over consecutive days in February 1970 were 150/90, 148/90, and 150/90. The Veteran's July 1971 separation examination shows that his blood pressure was 120/80; no diagnosis of hypertension was made. According to post-service medical records, the Veteran was seen for an assessment of his blood pressure in December 1984. His blood pressure was 130/80. It was opined that the Veteran did not have a problem with blood pressure, but had a problem with massive arm overdevelopment. The earliest indication of a confirmed diagnosis of hypertension is a record dated in December 1993 when he was diagnosed with a history of hypertension. At that time, the Veteran reported that for many years, he had been told when he sees the doctor that he was hypertensive. At other times, his blood pressure was not elevated, but no one had ever mentioned recently that he should be treated for hypertension. A number of years ago, a previous physician treated him for hypertension and then he stated that he saw other physicians who recommended medications and eventually nothing was continued. He had not been treated for hypertension for many years. He denied any history of diabetes. The Veteran was diagnosed with coronary artery disease in January 1994 and with diabetes mellitus, type II in September 1997. A statement from R.M., M.D. dated in November 2003 shows that the Veteran's hypertension was secondary to his diabetes mellitus, type II. It was his opinion that diabetes accelerates hypertension. At a January 2004 VA examination, with regard to his hypertension, he stated that it had been for more than 10 years and had always been on the borderline. He admitted that during office visits with doctors, his blood pressure fluctuated as he got anxious. After sitting down a couple of minutes, his blood pressure usually went down. That was the way it had been all his life after doctors' visits. The Veteran was diagnosed with essential hypertension not secondary to diabetes mellitus. Dr. R.M. also provided a May 2004 letter showing that diabetes mellitus, type II causes athrosclerosis, which is a contributing factor in causing hypertension and contributed to the Veteran's diagnosis of hypertension. In fact, the criteria of hypertension are lower for a diabetic compared to a non-diabetic. An August 2009 VA examiner reported that the medical profession recognized a conglomerate of interrelated medical illnesses, which included obesity, hypertension, diabetes mellitus, type II, hyperlipidemia and ischemic heart disease. No doubt those conditions frequently occur together. The underlying thread that ran between those conditions had not been recognized as yet. It should be noted that there is fast, ongoing research in that field and opinions changed frequently. There was another factor; VA had determined on statistical grounds that herbicides caused diabetes. It had never been determined that the herbicides diabetes behaved in the same way that naturally occurring diabetes mellitus, type II did. Doctors were asked to apply the naturally occurring diabetes mellitus, type II data to the herbicides diabetes, which could be totally erroneous. The examiner opined that it was less likely as not that the hypertension was diagnosed when the Veteran was on active duty. Only "sustained" hypertension, diagnosed by a physician should qualify. The examiner also opined that it was possible that diabetes mellitus was causing continued "aggravation" of the hypertension based on diabetic nephropathy. The Veteran's BUN and creatinine were normal, but the Veteran's micral/creatinine was greater than 300. There was evidence in medical literature that elevated micral/creatinine indicates diabetic nephropathy of sufficient degree to affect hypertension. However, the Veteran's hypertension was well controlled with two pills and no aggravation was apparent, nor was any end organ damage apparent to require additional compensation. There was no overt nephropathy at this point in time. The examiner commented that all of the above statements were based on the naturally occurring diabetes mellitus, type II, which might not apply to the kind of diabetes caused by herbicides. The Veteran was afforded another VA examination in January 2011. The examiner opined that it was less likely than not that the Veteran's hypertension was caused or aggravated by his coronary artery disease. The hypertensive diagnosis per the Veteran's review preceded his known diagnosis of coronary artery disease by approximately 15 years and he preceded his diabetic diagnosis by that timeframe as well and it was in all likelihood an essential form of hypertension evident. An addendum opinion also in January 2011 shows that after reviewing the claims file, it was still less likely than not that the Veteran's hypertension was caused or aggravated by his known coronary disease. Coronary disease per se was not an etiologic factor for hypertension and there was episodic evidence per service records or prior labile hypertension existing many years prior during his active duty years. As a result, the coronary disease itself was less likely than not an etiologic factor for the hypertension diagnosis. An addendum opinion from the January 2011 examiner in April 2012 essentially restated the January 2011 addendum opinion. Additional opinion was obtained in August 2012. The examiner opined that with regard to aggravation of the Veteran's hypertension by his coronary disease, the diagnosis of coronary disease was that of athrosclerotic changes within the coronary arteries. It was well documented that the Veteran did have coronary disease. The Veteran was on hypertensive medication at the time of his initial diagnostic cardiac catheterization in April 2002. With regard to aggravation of hypertension by coronary artery disease, that would be foreseeable only in the case of significantly compromised left ventricular function with resulting ineffective cardiac output and subsequent ischemia to the renal vasculature or in the case of embolic phenomenon from the results of the left ventricular dysfunction to the renal vasculature; none of which could be documented. As a result, it was less likely than not that the Veteran's documented coronary disease proved to be an aggravating factor for his hypertension. The January 2011 examiner provided yet another opinion in January 2013. It was the examiner's opinion that it was less likely than not that the diabetic condition had permanently aggravated the hypertension state. The clear states of diabetes and hypertension were well documented. There was no significant variation with his hypertensive control from the initial objective reading in the claims file in April 2002. The examiner had no readings prior to that to timeframe to review. That reading remained quite similar to his most current reading in January 2011. There was no objective evidence of renal dysfunction as the result of hypertensive insult at the renovascular level as well. As a result, from that objective data, it was less likely than not that there was objective evidence of aggravation of the Veteran's hypertensive state by his service-connected diabetes mellitus. The most recent opinion from the January 2011 examiner was provided in July 2013. The examiner noted review of Dr. R.M.'s May 2004 letter. The examiner totally agreed with Dr. R.M.'s summary with the well known fact that diabetes can be a predisposing factor for the development of hypertension. The examiner also agreed with the acceleration of the atherosclerotic process and also might add that reactive endothelial changes were a key factor, as well, in the development of a hypertensive state in a diabetic patient. That was a well known pathophysiologic mechanism, and however, in this situation, was not objectively quantitated. There was no evidence of biopsy-proven atherosclerotic changes or there was no objective evidence of flow studies, either nuclear or arteriography changes, to document the progression of the atherosclerotic changes suggested. While a well known mechanism was agreed upon, there was no objective data to confirm this and this would prove speculative in nature. With regard to objectivity in this situation, one must rely on clinical assessment, that being hypertensive control, treatment of hypertension with medications, and renovascular manifestations of a diabetic hypertensive state which have been previously described on multiple occasions. There was no objective data to suggest aggravation of the hypertension state by the rated diabetic state. There was no objective data of progressive medication changes or increases to control the hypertensive state and there was no objective data of renal function, suggesting progression of the hypertension by the diabetic state. As a result, while agreed upon pathophysiology was certainly evident, objective criteria for aggravation of the hypertension by diabetes was not clinically seen. As a result, it was less likely than not that the Veteran's service connected diabetes did permanently aggravate his hypertensive state based upon available information reviewed. Based on a review of the evidence, the Board concludes that service connection for hypertension on direct, presumptive and secondary bases is not warranted. Although the evidence clearly shows that the Veteran currently has hypertension, it does not show that it is related to his military service, to include being secondary to his service-connected coronary artery disease and diabetes mellitus, type II. Initially, regarding service connection on a direct basis, the evidence does not show that the Veteran incurred any event, injury or disease to his cardiovascular system or that his hypertension had its onset in service. In reaching this conclusion, the Board acknowledges that the Veteran's STRs show mild labile hypertension in 1970; however, the records indicated that some degree of his blood pressure elevation was secondary to anxiety. Indeed, in January 2004, the Veteran himself reported that his blood pressure fluctuated as he got anxious during office visits with doctors; that was the way it had been all his life after doctors' visits. Of importance to the Board is that the Veteran was shown to have blood pressure of 120/80 at discharge in July 1971; no diagnosis of hypertension was made at that time. Furthermore, treatment records in 1984 show that the Veteran did not have hypertension, which weighs against a finding that the onset of the Veteran's current hypertension began in service. Additionally, the August 2009 examiner, indicates that the Veteran's hypertension is not directly related to his military service. That examiner addressed the finding of labile hypertension in service and still concluded that the onset of the Veteran's hypertension did not occur during service. The Board acknowledges that the January 2011 examiner, in opining that the Veteran's hypertension was not caused by coronary artery disease, indicated that there was episodic evidence of hypertension during his active duty. However, that opinion did not address the service and post-service evidence indicating that the Veteran's blood pressure was increased during doctors' visits as he was anxious, nor did it address the fact that the Veteran did not have high blood pressure at discharge. The opinion also did not address the August 2009 VA examiner's opinion that only sustained hypertension diagnosed by a physician qualifies. Therefore, the Board concludes that such opinion does not support a finding that the Veteran's hypertension was incurred during his military service. The pertinent medical evidence of record does not establish that the Veteran's hypertension is directly related to his military service. Therefore, the Board finds that service connection on a direct basis is not warranted. The evidence also does not show that service connection on a presumptive basis is warranted. The earliest confirmed diagnosis of hypertension is in 1993; although the Veteran reported a prior history of treatment at that time, there is no indication that hypertension was manifest to a degree of 10 percent or more within one year of his discharge from service in July 1971. As already noted above, records in 1984 show that the Veteran did not have hypertension at that time, weighing against a finding that the Veteran's hypertension manifest within the pertinent presumptive period. No medical professional has provided any such opinion that the Veteran had hypertension manifest to a degree of ten percent or more within one year of discharge from service. Accordingly, service connection on a presumptive basis is not warranted. The Board also finds that service connection as secondary to the service-connected coronary artery disease and/or diabetes mellitus, type II is also not warranted. Although the Veteran is service connected for coronary artery disease and diabetes mellitus, type II and has been diagnosed post-service with hypertension, the evidence fails to show a nexus between his service-connected disabilities and his hypertension. Beginning with the Veteran's service-connected coronary artery disease, the evidence does not show that it caused or aggravates his hypertension. The only medical opinion of record, that of the January 2011 VA examiner, shows that coronary disease per se was not an etiologic factor for hypertension and that aggravation of hypertension by coronary artery disease would be foreseeable only in the case of significantly compromised left ventricular function with resulting ineffective cardiac output and subsequent ischemia to the renal vasculature or in the case of embolic phenomenon from the results of the left ventricular dysfunction to the renal vasculature; none of which could be documented. In this case, the January 2011 examiner provided well-reasoned opinions that the Veteran's service-connected coronary artery disease did not cause or aggravate the Veteran's hypertension. No medical professional has provided any opinion indicating that the Veteran's coronary artery disease caused or aggravates his hypertension. Therefore, the Board concludes that the Veteran's hypertension is not secondary to his service-connected coronary artery disease. The evidence also does not support a finding that the Veteran's hypertension is secondary to his service-connected diabetes mellitus, type II. The Board acknowledges Dr. R.M.'s November 2003 and May 2004 statements showing that the Veteran's diabetes mellitus, type II contributed to his hypertension. However, the January 2011 examiner opined that it was less likely than not that the Veteran's service-connected diabetes did permanently aggravate his hypertensive state based upon available information reviewed. The VA examiner addressed Dr. R.M.'s positive opinions and agreed with the well known fact that diabetes can be a predisposing factor for the development of hypertension. However, as explained in detail above, the examiner concluded that there was no objective data to suggest aggravation of the hypertension state by the rated diabetic state. As the VA examiner provided a more well-reasoned rationale than Dr. R.M., the Board accords such opinion more probative value. Furthermore, no medical professional has opined that the Veteran's diabetes mellitus, type II caused his hypertension. Consequently, the evidence of record weighs against a finding that the Veteran's service-connected diabetes mellitus, type II caused or aggravates his hypertension. Without evidence of an in-service event, injury, or disease to the Veteran's cardiovascular system or competent evidence of an association between his hypertension and his active duty, to include his service-connected coronary artery disease and diabetes mellitus, type II, service connection for hypertension is not warranted. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of hypertension falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to etiology have no probative value. Without competent and credible evidence of an association between hypertension and the Veteran's active duty, to include being secondary to the service-connected coronary artery disease and diabetes mellitus, type II, service connection for hypertension is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for hypertension on a direct basis, and as secondary to the service-connected coronary artery disease and diabetes mellitus, type II, is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for hypertension, to include as secondary to the service-connected coronary artery disease and diabetes mellitus, type II is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs