Citation Nr: 1331787 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-48 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for hypertension, including as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. This appeal to the Board of Veterans' Appeals (Board) is from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that on his Substantive Appeal, (on VA Form 9), the Veteran requested a hearing before the Board via video conference. However, the Veteran failed to appear at his scheduled hearing in December 2011. Accordingly, the Board is proceeding as though he withdrew this hearing request because the Veteran neither filed for a postponement of his hearing nor provided documentation showing good cause for his failure to appear. 38 C.F.R. § 20.704(d) (2013). In June 2013, the Board remanded this claim to the RO for additional development and consideration. All requested actions have been completed. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issues on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDING OF FACT The preponderance of the evidence shows that the Veteran's hypertension was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including Agent Orange and his service-connected diabetes mellitus. CONCLUSION OF LAW Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, 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) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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 expect to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the VCAA duty to notify was satisfied by way of a February 2008 letter sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content as to the appellant's claim. This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006). VA also has a duty to assist a veteran in the development of a claim. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records and post-service VA and private treatment records. The Veteran had VA examinations in July 2008 and July 2013. As the July 2013 VA examiner's opinion was based upon an accurate understanding of the disability at issue, as well as the Veteran's documented medical history, based upon review of his claims file, the Board finds it is adequate for the purposes of deciding the claim on appeal decided herein. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Hence, the Board concludes that in obtaining the July 2013 examination, the RO substantially complied with the June 2013 Board remand instructions. Dyment v. West, 13 Vet. App. 141 (1999) ( a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to develop evidence is required. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). II. Service Connection The Board has reviewed all of the evidence in the record. 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 appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Certain chronic diseases (to include hypertension) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post service (one year for hypertension). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 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). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and address the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by the veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also 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."). For VA purposes, the term hypertension means that the diastolic blood pressure is predominantly 90mm. (millimeters of mercury) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Code 7101, Note (1). The Veteran asserts his hypertension is due to his active duty service, to include as secondary to herbicide exposure, and/or secondary to his service-connected type II diabetes mellitus. The October 1966 enlistment examination recorded the Veteran's blood pressure as 120/58. At his October 1968 separation examination, his blood pressure was listed as 128/84. The Veteran also denied high or low blood pressure on his Separation Self-Assessment Questionnaire. Therefore, the Veteran's service treatment records are silent for complaints, findings, treatment, or diagnosis relating to hypertension/high blood pressure. Further, there is no indication he suffered from complaints of problems commonly associated with hypertension during his active service. Post-service VA treatment records dated in 2003 note a diagnosis of hypertension. VA and private treatment records dated through June 2013 show that hypertension continues to be listed as a current disorder. However, these records do not contain any opinions as to the etiology of the Veteran's hypertension. In the July 2008 VA examination, primarily conducted in connection with the Veteran's claims of service connection for diabetes and other disabilities, the examiner noted a diagnosis of hypertension and stated that it was not related to diabetes mellitus because it predated his diagnosis of diabetes. The examiner also opined that the disease was not worsened or increased by the Veteran's diabetes. No explanation or rationale was provided. The examiner also failed to consider whether the Veteran's hypertension may be directly attributable to service. In a July 2013 remand, pursuant to the Board's June 2013 remand instructions, the Veteran be reexamined. In a July 2013 VA examination, the examiner determined his hypertension was less likely than not incurred in or caused by the claimed in-service illness. The examiner stated both the entrance and separation examinations documented normal blood pressure readings, and the Veteran denied high or low blood pressure. Further, the examiner stated there were no records from the time of separation to the time of diagnosis in 2003 of hypertension. As to whether the Veteran's hypertension was either caused or aggravated by the service-connected diabetes mellitus, the examiner state it is less likely than not proximately due to or the result of the service connected condition. As rationale for this unfavorable opinion, the examiner stated that the Veteran's diabetes is well controlled with diet alone and there is no evidence of diabetic nephropathy as the urine protein was negative on the most recent urinalysis in 2013. The examiner explained the diabetic nephropathy is the precursor to diabetic related hypertension and without nephropathy, there is no hypertension secondary to or aggravated by the diabetes. As noted above, certain diseases may be service connected on a presumptive basis as due to herbicide (Agent Orange) exposure if manifested in a veteran who served in the Republic of Vietnam during the Vietnam era, based on presumptive exposure to certain herbicide exposure. 38 U.S.C.A. § 1116. Those diseases are listed in 38 C.F.R. § 3.309(e); hypertension is not listed, and it is specifically excluded from the definition of "ischemic heart disease" (which is included in the list). As hypertension is not among the diseases listed in 38 C.F.R. § 3.309(e) (determined to be related to Agent Orange/herbicide exposure), the presumptive provisions of 38 U.S.C.A. § 1116 do not apply and service connection on a presumptive basis for hypertension as due to Agent Orange exposure is not warranted. The Board observes that extensive scientific studies have produced a limited list of disabilities related to Agent Orange exposure (see 38 C.F.R. § 3.309(e)). There is no evidence that hypertension was manifested in service or in the initial year following the Veteran's discharge from active duty. Indeed, the Veteran does not appear to be alleging that his hypertension was manifested in service or in the initial year following his discharge from active duty. Consequently, service connection for this disability on the basis that it became manifest in service and persisted, or on a presumptive basis (for hypertension as a chronic disease under 38 U.S.C.A. § 1112) is not warranted. What remains for consideration is whether in the absence of manifestation in service and/or post-service recurrence of symptoms, the Veteran's hypertension is otherwise related to his service. He did not submit any medical opinions relating his hypertension to his service/events therein, to include his service-connected type II diabetes mellitus. The July 2008 VA examiner opined the Veteran's hypertension was not related to his diabetes as the Veteran's hypertension predated his diabetes diagnosis. More importantly, the July 2013 VA examiner opined that it was less likely as not that the Veteran's diabetes caused or aggravated his hypertension as the Veteran's diabetes is well controlled and there is no evidence of diabetic nephropathy. There are no opinions to the contrary. While the Veteran is competent to report that he had symptoms he felt were related to hypertension during his active service, or since service, he is not competent to diagnose his hypertension as related to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). Similarly, the Veteran and the appellant are not competent to provide either a diagnosis or the medical nexus, and the medical opinions from the medical professionals in this case have not related the Veteran's hypertension to his active service, or to his service-connected type II diabetes mellitus. Thus, the Veteran's lay assertions are not competent or sufficient. See Jandreau, 492 F.3d at 1377. The weight of the competent medical evidence demonstrates that the Veteran's hypertension began many years after his active service, was not caused by any incident of service, and is not proximately due to or the result of his service connected type II diabetes mellitus. The Board therefore concludes that the preponderance of the evidence is against service connection that is neither direct nor secondary service connection for hypertension is warranted. ORDER Service connection for hypertension is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs