Citation Nr: 1331669 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-27 883A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension to include as secondary to a service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this appeal originally included claims of service connection for erectile dysfunction and service connection for coronary artery disease, status post bypass graft. In March 2011, the RO granted service connection for coronary artery disease, status post bypass graft. In July 2012, the RO granted service connection for erectile dysfunction and special monthly compensation for loss of use of a creative organ. As the Veteran has not initiated appeals with respect to the initial ratings, or effective dates, assigned to these now service-connected disabilities, there are no claims pertaining to either disorder before the Board. Consideration herein is limited to the issue listed on the first page of the present decision. In June 2013, the Board requested a Veterans' Health Administration (VHA) advisory opinion. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901(a) (2012). The resulting VHA opinion was received by the Board in August 2013 and has been included in the claims folder for review. Although the VHA opinion has not yet been provided to the Veteran and his representative, as the Board is granting in full the benefit sought on appeal, this procedural error is deemed to be non-prejudicial to the appellant. 38 C.F.R. § 20.903 (2012). The issue of entitlement to service connection for depression secondary to erectile dysfunction has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See VA Form 21-4138 received by the RO on August 18, 2011. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the competent medical and other evidence of record reflects that the Veteran's service-connected diabetes mellitus aggravates his hypertension. CONCLUSION OF LAW Resolving all reasonable doubt, the Veteran's hypertension is aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). VA has satisfied its duty to assist and notify the Veteran in apprising him as to the evidence needed to substantiate, and in obtaining evidence pertinent to, his claim for service connection for hypertension. Indeed, to extent that there is any defect in VA's duty to assist and notify, the Board finds that such is non-prejudicial in light of the fact that the benefit sought on appeal (service connection for cause of death) is being granted in full. Law and Analysis The Veteran is seeking service connection, on a secondary basis for hypertension that he believes was caused, or made worse, by his service-connected diabetes mellitus. See VA Form 21-4138 received January 31, 2008. He does not otherwise contend that his hypertension began in service, or is directly related to his military service, nor is this shown by the record to be the case. As he has limited his argument to principles of secondary service connection, the Board will proceed to consider this limited aspect of this appeal. In this regard, the Board notes that service connection is currently in effect for diabetes mellitus, type II, rated as 20 percent disabling. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). There must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The earliest medical evidence suggestive of hypertension is in private treatment records dated in December 1998. At that time the Veteran was noted to have borderline high variable blood pressure. The examiner indicated that there was a labile component and that the Veteran would probably require treatment for hypertension. These records also show the Veteran was newly diagnosed with diabetes mellitus. See progress note from Rice Medical Center dated December 31, 1998. In connection with his claim for service connection, the Veteran was afforded a VA examination in April 2010 where the examiner concluded the date of onset of the Veteran's hypertension was in 1989. It was also noted that the Veteran did not have a history of hypertensive renal disease. However, the examiner diagnosed essential hypertension without providing a specific opinion regarding the relationship between it and the diabetes. Moreover it appears that the examiner may have transposed the last two digits of the year marking the onset of the Veteran's hypertension as 1989 instead of 1998. [The Board notes that it performed a complete review of the Veteran's claims folder, but did not find complaints of or treatment for hypertension prior to December 1998.] Thus the opinion is inadequate for purposes of determining service connection. In November 2012, the claims file was returned for an additional medical opinion addressing the inadequacies in the previous VA examination report. Following review of the April 2010 examination report, a different examiner concluded that the Veteran's hypertension was not caused by or the result of diabetes as the hypertension was diagnosed in 1989, preceding the diabetes. The examiner also concluded the hypertension was not aggravated by diabetes as there was no evidence of diabetic nephropathy. Unfortunately, this medical opinion is also inadequate since, with the exception of the April 2010 VA examination report, it does not appear that the examiner reviewed any other evidence in the claims folder. For instance he was unaware of specific events such as the Veteran's evaluation for elevated blood pressure suggestive of hypertension and newly diagnosed diabetes in December 1998. Because the addendum was rendered without the benefit of a review of the entire claims file, the VA examiner in 2012 based his opinion, in large part, on the erroneous conclusion that the Veteran's hypertension was first diagnosed in 1989, thus preceding his diabetes. This error is significant because it directly impacts a major premise of the opinion, a premise relied upon in analyzing the likelihood that the Veteran's hypertension was caused or aggravated by diabetes. Medical opinions based on an incomplete or inaccurate factual premise are not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In this case, given the examiner's failure to fully address the evidence as documented in the Veteran's claims file, he was not informed of all the relevant facts when he rendered his opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). For further medical comment on this issue, the Board referred the claim for a VHA medical expert opinion. In an August 2013 opinion, a VA internal medicine specialist, thoroughly reviewed both the claims file and the current literature from the on-line medical reference UptoDate, and addressed the specific questions stated for consideration by the Board. The VHA specialist essentially concluded that the Veteran's hypertension was at least likely as not to have been aggravated by, if not caused by, his simultaneously diagnosed Type II diabetes mellitus. In discussing the rationale of the opinion, the internist noted the earliest medical record relevant to both diagnoses documents a visit on December 31, 1998. The record from this visit includes blood pressure readings 200/100 and 170/90, which by today's standards would be defined as stage-II hypertension. The diagnoses at the visit were diabetes mellitus, new diagnosis and blood pressure borderline high. The next visit related to treatment of the Veteran's medical condition occurred on May 24, 2002. At that time the Veteran's diabetes and hypertension were both under treatment and noted to be inadequately controlled and at another visit on June 21, 2002, the Veteran was noted to be on medication for both diabetes mellitus and hypertension. The VHA specialist noted that from the medical records provided in the claims file, diabetes mellitus and hypertension were both diagnosed at approximately the same time in 1998. In his request for compensation for these conditions, the Veteran also indicated that they both started in 1998. The VHA specialist went on to explain that hypertension frequently occurs together with diabetes mellitus and several mechanisms have been proposed to contribute to the development of hypertension in diabetes. Hyperinsulinism due to insulin resistance in Type II diabetes may increase systemic blood pressure by increasing sympathetic nervous system activity and promoting renal sodium retention. Secondly volume expansion can occurred in diabetes as a result of an elevated blood sugar by a mechanism that increased renal absorption of sodium and thus sodium retention. Thirdly individuals with diabetes mellitus have increased arterial stiffness by a variety of mechanisms including arteriosclerosis which the Veteran also has. The reduction of the distensibility of the arteries can contribute to a rise in systolic blood pressure. In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that it is as likely as not that the Veteran's hypertension is secondary to, or aggravated by, his diabetes mellitus. The VHA specialist has specifically concluded that the Veteran's service-connected diabetes mellitus aggravates his hypertension. That said, there is no adequate reason to reject the medical opinion of record that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). The Board resolves the benefit of the doubt in the Veteran's favor and finds that the requirements for secondary service connection for hypertension are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs