Citation Nr: 1328738 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-24 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for a right testicular mass, to include as secondary to service-connected diabetes mellitus, type II. ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the San Juan, the Commonwealth of Puerto Rico, Regional Office (RO). In September 2012 the Board, inter alia, reopened the Veteran's claim of entitlement to service connection for hypertension, and remanded that issue as well as service connection for a right testicular mass for further development. The claims are now ready for adjudication. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Hypertension is not related to any disease, injury, or incident in service, did not manifest within one year of the Veteran's discharge from service, and such was not caused or aggravated by service-connected diabetes mellitus, type II. 2. A right testicular mass is not related to any disease, injury, or incident in service, and such was not caused or aggravated by service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for establishing service connection for a right testicular mass have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). A VCAA letter was sent to the Veteran in May 2008. The letter indicated the type of evidence and information needed to substantiate service connection claims on a direct and secondary basis, and apprised the Veteran of his and VA's respective responsibilities in obtaining this supporting evidence. That letter also notified him that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess/Hartman, supra. Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and VA medical treatment records were obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication that any additional evidence, relevant to this claim, is available and not part of the claims file. As referenced above, in September 2012 the Board remanded the issues decided herein to afford the Veteran another VA examination, conducted in November 2012. The Board finds that the examination is sufficient, as the clinician examined the Veteran and provided an opinion supported by a complete rationale, which considered his lay statements and medical history. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board further finds that the AOJ has substantially complied with the September 2012 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that a supplemental statement of the case, issued in February 2013, was returned as undeliverable, and the present whereabouts of the Veteran are unknown. The last record of contact from the Veteran with VA appears to have been his November 2012 VA examination, where he confirmed the address that VA currently has of record as his permanent address. It is the burden of the Veteran to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). The Board also notes that "[T]he duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the Veteran's responsibility to provide VA with a current address. Consequently, no further assistance is required and the Board will proceed on the record as it stands. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him the development of the claims, and the Board will proceed to a decision. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hypertension and malignant tumors, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Service connection may also be granted on a secondary basis where a condition is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). To warrant service connection on a secondary basis, the evidence must show that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. In such instance, a veteran may be compensated for the degree of disability over and above the degree of disability which existed prior to the aggravation of the non-service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). III. Analysis The Veteran seeks service connection for hypertension and a right testicular mass, which he has asserted on a direct basis, and as secondarily related to his service-connected diabetes. He is also service-connected for atherosclerotic heart disease (with angina pectoris, right coronary artery obstruction, corrected with angioplasty inferolateral ischemia, congestive heart failure), and carpel tunnel syndrome of the right and left wrist. The Board notes at the outset that, while the Veteran seeks service connection for hypertension and a right testicular mass, he has not asserted that he suffered from these conditions during service, within one year of separation from service, or that he has had continuity of symptomatology of these disabilities since service. He primarily contends that his claimed disabilities are related to his service-connected diabetes, though he has also asserted entitlement under a direct theory of service connection as well. Medical evidence shows that the Veteran has been diagnosed with hypertension and a right testicular mass; accordingly, the Board accepts that he has a current diagnosis of both claimed disabilities. The Veteran's service treatment records consist primarily of examinations conducted at service entrance and separation, indicating normal blood pressure and no suggestion of a right testicular mass. Specifically, his entrance examination shows a clinically normal genitourinary system and a blood pressure reading of 98/56. At his service separation examination, his genitourinary system was again found clinically normal, his blood pressure was 128/74, and he denied a history of hypertension and tumors. Per the record, the first diagnosis of hypertension appears in September 2002, and the right testicular mass was reported diagnosed in 1993, such that the Veteran is not entitled to service connection for either disability on a presumptive basis. Moreover, as indicated previously, he has not alleged a continuity of symptomatology of either disease since service, and such is not shown by the evidence of record; accordingly service connection is not warranted on these grounds either. Additionally, the Veteran's right testicular mass has not been shown to be malignant, as would be required to qualify as a chronic disease under 38 C.F.R. § 3.309. Moreover, as there is no evidence of a malignant tumor, the testicular disorder does not qualify for presumptive service connection under 38 C.F.R. §§ 3.307, 3.309. In February 2003, the Veteran underwent a VA examination during which the examiner opined that the Veteran's hypertension was not etiologically related to his service-connected diabetes. At a June 2008 VA examination, it was noted that the Veteran's right testicular mass was detected 15 years ago, when the Veteran was diagnosed with diabetes. The examiner found that, because the right testicular mass was present at the time of the Veteran's diabetes diagnosis, such had its onset prior to diabetes and therefore was not caused by or a result of the diabetes. A July 2009 letter from the Veteran's private physician stated that the Veteran's hypertension and right testicular mass presented after his diabetes as complications. No rationale was provided. In September 2012, the Board remanded the instant claims for further examination and opinion. In particular, the Board noted that February 2003 VA examination was insufficient as it lacked a rationale and also did not provide an opinion whether the Veteran's hypertension was aggravated by any of his service-connected disabilities. Similarly, the Board noted that the June 2008 VA examination pertaining to the testicular mass did not provide an opinion with respect to aggravation. Regarding both claimed disabilities, the Board further noted that the July 2009 private opinion lacked a rationale. Accordingly, in November 2012, the Veteran again underwent a VA examination. After physically examining the Veteran, reviewing his claims file, electronic medical records and the July 2009 private physician's opinion, the examiner found no relationship between either claimed disability, hypertension and a right testicular mass, and service, either directly or as secondarily-related to any service-connected disability. Regarding hypertension, he reasoned that the Veteran's service records are silent with respect to hypertension, and that such was not diagnosed until more than twenty five years after service separation. The examiner further explained that hypertension was not caused or aggravated by diabetes nor in combination with other service-connected disabilities, as there was no evidence of significant micro-albuminuria to suggest diabetic nephropathy as an etiologic factor. With respect to the Veteran's other service-connected disabilities, the examiner further explained: The hypertension is not caused by, not aggravated by service connected atherosclerotic heart disease (with angina pectoris, right coronary artery obstruction, corrected with angioplasty inferolateral ischemia, congestive heart failure), nor in combination with other service connected conditions, because the medical literature does not support that these conditions cause hypertension. It is well known in medical literature that hypertension is an etiologic factor for these conditions but not the contrary. The hypertension is not caused by, not aggravated by service connected carpal tunnel syndrome of the right and left wrist, nor in combination with other service connected conditions, because these are different disease entities with different pathophysiological processes with different body locations, not related to each other. Regarding the right testicular mass, the examiner stated that service records were silent for such, and it was not diagnosed until more than twenty years after service separation. He further stated that: The right testicle mass is not caused by, not aggravated by service connected diabetes mellitus type 2, atherosclerotic heart disease (with angina pectoris, right coronary artery obstruction, corrected with angioplasty inferolateral ischemia, congestive heart failure), or carpal tunnel syndrome of the right and left wrist, nor alone nor in combination, because these are different disease entities with different pathophysiological processes with different body locations, not related to each other. Based on the above, the Board finds that service connection for hypertension and a right testicular mass is not warranted. In so finding, the Board notes that, while the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Therefore, the Board finds the July 2009 private physician's statement, which provides no rationale, nonprobative regarding the etiology of the Veteran's claimed disabilities. By contrast, the Board accords the November 2012 VA examiner's opinion significant probative value on the question of etiology, as it reflects an opinion based on a thorough review of the Veteran's medical records and provides a rationale which discusses the Veteran's pertinent medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the examiner offered clear conclusions with supporting data and reasoned medical explanations. Id., Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Regarding the Veteran's assertions that hypertension and right testicular mass are related to service, either directly or as secondary to his service-connected diabetes, he is not competent make this conclusion as medical expertise is required. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). Here, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, for the reasons outlined above, the Board finds that the preponderance of evidence is against the Veteran's claims for service connection for hypertension and a right testicular mass. As the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for hypertension is denied. Service connection for a right testicular mass is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs