Citation Nr: 1333907 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 08-13 332A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected posttraumatic stress disorder (PTSD) and Type II diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision rendered by the New Orleans, Louisiana Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for hypertension was previously before the Board in April 2012 when the claim was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims ("the Court"). In a February 2013 Order, the Court granted a Joint Motion for Remand (JMR) by the Veteran's representative and the VA General Counsel and remanded the claim back to the Board for further proceeding consistent with the February 2013 order. The Board remanded the Veteran's claim for additional development consistent with the Court's Order in July 2013. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era. Although herbicide agent exposure is presumed, hypertension is not a disease eligible for presumptive service connection. 2. Hypertension did not have its onset in service; did not manifest within one year of service; and is not attributable to service, including due to presumed exposure to herbicide agents. 3. Hypertension is not due to or aggravated by service-connected PTSD or diabetes. CONCLUSION OF LAW Hypertension is not a result of disease or injury incurred in or aggravated by service, and may not be presumed to have been incurred in service; and is not secondary to PTSD or diabetes mellitus. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013); 3.310 (prior to October 10, 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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. Certain chronic disabilities, such as cardiovascular-renal disease, to include hypertension, are presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, 38 C.F.R. § 3.310(a) states that service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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). Effective October 10, 2006, 38 C.F.R. § 3.310(b) was amended to codify the holding in Allen. The amended regulation, however, contains a more stringent standard for establishing secondary service connection than the holding in Allen in that the medical evidence must establish a pre-aggravation baseline level of severity of the nonservice- connected disability before aggravation will be conceded. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Since 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 regulatory change on October 10, 2006, which clearly favors the claimant. In determining whether service connection is warranted for a disability, VA is responsible for determining 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Hypertension for VA purposes is established if the diastolic blood pressure is 90mm. or more, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic pressure of less than 90mm.. 38 C.F.R. § 4.104, Diagnostic Code 7101. In this case, VA and private medical records reflect that the Veteran has been diagnosed with borderline hypertension since approximately 1999 and treated with medication for hypertension since approximately 2004. Hence, there is evidence of a current disability. The Veteran was afforded a VA exam in May 2013 and his blood pressure measured at 130/70 and 130/72. The examiner found he had no complications of hypertension. The Veteran seemingly asserts that he had hypertension dating back to immediately after active duty and in an April 2009 statement opined that his hypertension is due to his PTSD. (See also, statements provided in March 2006 and May 2008 statements in which he attributes hypertension to service or to exposure to herbicides in service.) However, he does not describe particular hypertension symptoms experienced since service, and the Board finds that he is not competent to diagnose hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (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."); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). First, high blood pressure testing requires clinical testing, not lay observation, so he is not competent to assert that he experienced hypertension since service. Second, hypertension is not diagnosed by unique and readily identifiable features and does not involve a simple identification that a layperson is competent to make. Rather, the determination of both the diagnosis and etiology of this disease requires medical expertise that the Veteran fails to possess. Thus, the Veteran's opinions in this regard have little probative value. In August 2013 the VA obtained a medical opinion to address the Veteran's contention that his hypertension is secondary to either his service-connected PTSD or his diabetes. The VA examiner reviewed the Veteran's claims file and opined that the Veteran's hypertension is not secondary to and was not aggravated by either his PTSD or his diabetes. The examiner noted the Veteran's private treatment records show significantly elevated blood pressure readings between June 1996 and April 1999 consistent with hypertension. The Veteran reported he has been taking medication for hypertension for the past 12 years. With regard to PTSD, the examiner stated that a medical literature review indicates that PTSD is associated with cardiovascular risk and cardiovascular disease including hypertension; however there is lack of statistical evidence to show causality between PTSD and hypertension to establish a causal relationship that suggests hypertension is etiologically related to PTSD. As to aggravation, the examiner explained that the Veteran's treatment records show that his hypertension has been treated with a single drug regimen, suggesting a lack of aggravation of the hypertension by his PTSD. Further, records do not show the Veteran's PTSD is being treated with medication; therefore, aggravation of his hypertension could not be a medication side effect. The Board finds the VA examiner's opinion is competent, based on an accurate representation of the facts, and well-reasoned. No other medical opinion is of record, and the evidence does not otherwise support that the Veteran's hypertension was caused or aggravated by his PTSD. While the Board recognizes the Veteran's cite to a VA-generated Question and Answer Committee document citing to a study by the National Center for PTSD, which, while inconclusive, appears to acknowledge that a number of studies have found an association between PTSD and poor cardiovascular health, the Board finds the evidence is too equivocal and lacking in specificity to this particular Veteran to support granting the Veteran's claim. Further, the VA examiner specifically considered the document in rendering his opinion that it is less likely than not that the Veteran's hypertension was caused or aggravated by his PTSD. Therefore, the Board finds a preponderance of the evidence is against secondary service connection for hypertension due to PTSD. With regard to diabetes, the examiner noted that the Veteran's hypertension was diagnosed prior to his diabetes, thus making it less likely than not that the Veteran's diabetes was the cause of the hypertension. As to aggravation, the examiner explained that the Veteran's labs showed no elevation of the urine microalbumen/creatinine ratio between May 2010, when the Veteran was diagnosed with diabetes, and present, suggesting minimal diabetes-related nephropathy. Further, the Veteran's current labs showed normal serum creatinine, and a May 2013 VA eye examination found no diabetic retinopathy. The examiner concluded that as it is unlikely there is any significant diabetes-related nephropathy without diabetes-related retinopathy based on medical literature, and without diabetes-related nephropathy, there is no significant diabetes-related aggravated of the Veteran's hypertension. The examiner also noted that the Veteran has continuously been treated with a single drug regimen, also suggesting no aggravation of his hypertension by his diabetes. While the Board recognizes the VA'S ADJUDICATION PROCEDURE MANUAL REWRITE M21-1MR Part Ill Subpart iv Chap 4 Section F para 22 c), which states that complications of diabetes mellitus may include hypertension, the Board finds the preponderance of the evidence is against finding that the Veteran's hypertension was caused or aggravated by his diabetes. The VA examiner specifically considered the possibility in this case and rejected it based on an evaluation of the Veteran's specific diabetic manifestations. The Board finds the VA examiner's opinion is competent, based on an accurate representation of the facts, and well-reasoned. No other medical opinion is of record, and the evidence does not otherwise support that the Veteran's hypertension was caused or aggravated by his diabetes. Therefore, the Board finds a preponderance of the evidence is against secondary service connection for hypertension due to diabetes. When determining whether service connection is warranted, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The Board has also considered whether the Veteran's hypertension is directly related to service. There is no indication of in-service incurrence of hypertension. His service treatment records are silent for any treatment, clinical diagnoses of hypertension, or other clinical indications such as high blood pressure. He does not necessarily argue the contrary. Indeed, at the time of his separation examination, the Veteran was recorded to have a blood pressure of 126/72. His heart and vascular system were described as normal. He denied having high blood pressure. A review of the post-service evidence also does not support the conclusion that current hypertension is causally related to active duty service, as there are no medical findings indicating this possibility. The Board emphasizes the Veteran has not offered any lay statements that support service connection on a direct theory of service connection. Rather, he admits that his hypertension was not treated in service and that he has no evidence that the condition originated in Vietnam. There is also no indication of entitlement to presumptive service connection for chronic diseases. Notably, in a March 2006 notice of disagreement (NOD), the Veteran stated, "I almost was not hired in August 1970 [within the one-year presumptive period] because I had borderline high blood pressure, which I never had before then." However, the record fails to show by objective evaluation that he manifested hypertension to a degree of 10 percent by April 1971, within a year of discharge. On the contrary, the initial recorded diagnosis of hypertension is not until approximately 1999, nearly three decades (29 years) after service. Thus, service connection on a direct or presumptive basis is not established. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board has also considered whether his hypertension could be due to herbicide exposure. Applicable regulations provide that a Veteran who served on active duty in Vietnam during the Vietnam era is presumed to have been exposed to Agent Orange or similar herbicide. 38 C.F.R. § 3.307(a)(1)(6)(iii). The Veteran's herbicide exposure is presumed, because his service personnel records show service in Vietnam during that era. However, hypertension is not one of the diseases VA has established as presumptively eligible for service connection based upon herbicide exposure. 38 U.S.C.A. § 1116. Although ischemic heart disease is listed, it does not include hypertension. 38 C.F.R. § 3.309(e), Note 3 (effective August 31, 2010). Thus, he does not meet the criteria of presumptive service connection for herbicide exposure. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension and there is no doubt to be otherwise resolved. As such, the appeal is denied. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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 obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in May 2005 and July 2008, prior to the respective, initial denials of the claim in February 2006 and March 2009, so in the preferred sequence. These letters informed him of the evidence required to substantiate his claim and of his and VA's respective responsibilities in obtaining this supporting evidence. Another letter meeting the notice requirements of § 3.159(b)(1) was sent in September 2009, with additional notice specific to claims for secondary service connection, as applicable in this case. The more recent July 2008 and September 2009 letters also complied with Dingess. Since providing this additional secondary-service-connection notice and Dingess notice, the AOJ has readjudicated the claim in the February 2010 SSOC, including considering the additional evidence received in response to this additional notice. So the timing defect in the provision of this additional notice, since it did not precede the initial adjudication of the claim, has been rectified ("cured"). See again Mayfield IV and Prickett, supra. He has not made any pleading or allegation of insufficient VCAA notice or shown that any such error is unduly prejudicial, meaning outcome determinative of his claim. As the pleading party, he, not VA, has this burden of proof. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining the evidence necessary to substantiate his claim during the course of this appeal. The RO has obtained service treatment records (STRs), service personnel records (SPRs), VA treatment records, and identified private treatment records. The Veteran also submitted additional records and written statements in support of his claim. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded an in-person VA medical examination in May 2013 and a VA medical opinion was obtained in August 2013. The August 2013 VA examiner, a medical professional, reviewed the Veteran's claims file; relied on an accurate history, including the Veteran's assertions; and provided a sufficient opinion for the Board to decide the issue on appeal. Therefore, the Board finds that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 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, 16 Vet. App. 183. ORDER Service connection for hypertension, including as secondary to service-connected PTSD or Type II diabetes mellitus, is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs