Citation Nr: 1334132 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-16 083 ) 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 diabetes mellitus. 2. Entitlement to a total disability based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran had active service from November 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, the Commonwealth of Puerto Rico. The Board previously remanded the appeal in June 2011 and February 2013 for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals, in pertinent part, a rating decision of the RO dated in February 2012 with March and May 2012 notice letters of the determinations. These records has not yet been associated with the paper claims file, but have been considered by the Board. The remaining records found in the Virtual VA paperless claims file are either duplicative of the relevant evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran is not service connected for diabetes mellitus, Type II or any other disability. 2. Hypertension is not attributable to military service nor was it manifest within the first post-service year. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.303(b), 3.307, 3.309; 3.310 (2013). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), has been in effect since November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). With respect to the TDIU claim, this issue is decided as a matter of law, and the VCAA is not applicable. See generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Manning v. Principi, 16 Vet. App. 534, 542-3 (2002). In addition, the VA General Counsel has held that VA is not required under 38 U.S.C. § 5103(a) to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. VAOPGCPREC 5-04 (2004). The Board finds that all notification action needed to make a decision for the hypertension claim has been accomplished. Through an October 2008 notice letter, the RO notified the Veteran of the information and evidence needed to substantiate his claims, including secondary service connection, TDIU, and assignment of disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the October 2008 notice letter satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). It notified the Veteran that VA was responsible for obtaining records from any Federal agency and would make reasonable efforts to obtain evidence from non-Federal custodians. He was invited to submit any evidence in his possession. A remand for further notification of how to substantiate the claim is not necessary. There is no indication that any additional action is needed to comply with the duty to assist. Service treatment records (STRs) and August and September 2008 VA treatment records from the VA Medical Center in San Juan, Puerto Rico have been obtained. In March 2013, a negative response from the Social Security Administration (SSA) was received. The Board notes that limited VA treatment records are available. Although it appears the Veteran has ongoing VA treatment, he does not assert that any instance of ongoing treatment is pertinent to the appeal. See March 2013 Veteran statement. A remand to obtain additional treatment records would raise no reasonable possibility of substantiating the claims. 38 C.F.R. § 3.159(d). The Board notes that there are January 2009 statements written in Spanish; however, these statements were in response to a query for additional information about posttraumatic stress disorder (PTSD) stressors. Further assistance in translating these statements raises no reasonable possibility of substantiating the claims. Id. The Veteran was not afforded a VA hypertension examination. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The Veteran had VA diabetes examinations in November 2008, May 2010, and February 2012, which showed impaired fasting glucose. The crux of the Veteran's service connection claim is that hypertension is related to his diabetes. See August 2008 claim. The record does not show a current diabetes diagnosis. As well, and as detailed below, STRs are completely negative for elevated blood pressure readings. He denied having high or low blood pressure at separation. Neither the lay nor the medical evidence in any way suggests that he had hypertension during service or within a year of separation. He has not provided any lay evidence asserting a continuity of symptomatology. Moreover, he has not presented any lay or medical evidence that hypertension is directly related to Agent Orange. In short, he does not have any service connected disability and there is no probative evidence of an event, disease, or injury in service to which hypertension could be related. Accordingly, a VA examination is not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all Veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). The Veteran was also not afforded a VA TDIU examination. As noted above, VA is not obligated to assist the Veteran with his TDIU claim since he is not service connected for any disability, and the issue is solely a matter of law. VAOPGCPREC 5-04 (2004). Given the absence of any service connected disability, further assistance in providing an examination raises no reasonable possibility of substantiating the TDIU claim. 38 C.F.R. § 3.159(d). The record reflects compliance with the prior June 2011 and February 2013 remands. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The AOJ adjudicated the then pending claim for diabetes and in a May 2012 notification letter, found in Virtual VA, notified the Veteran that his service connection claim for diabetes was denied. In March 2013, SSA responded that they did not have any medical records for the Veteran. Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. The appeal is ready for review on the merits. II. Service connection Service connection may be established for a disability resulting from disease or injury incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In general, service connection requires: medical evidence of a current disability; medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and medical evidence of a nexus between the claimed in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first 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). For chronic disabilities listed under 38 C.F.R. § 3.309(a), which includes hypertension, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). However, as detailed below, hypertension has not been demonstrated within a year of separation and the presumption is not beneficial. Id. In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Service connection may also be granted for a disease first 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). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although the Veteran is competent in certain situations to identify a simple condition, he is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records (STRs) do not contain any complaints or findings for hypertension. On his August 1969 Report of Medical History for separation, the Veteran denied having or ever having high or low blood pressure. Contemporaneous clinical examination showed a blood pressure reading of 128/74. VA treatment records reflect that the Veteran was assessed as having hypertension in May 2006. An April 2010 VA entry lists diabetes as an active problem. The Veteran had November 2008, May 2010, and February 2012 VA examinations for diabetes mellitus, Type II (diabetes). All three VA examinations determined that diabetes was not present. The Veteran's primary contention is that hypertension is related to diabetes. See August 2008 claim. As recited above, multiple VA examinations have determined that the Veteran does not meet the criteria for a current diabetes diagnosis. Moreover, the Veteran is not service connected for diabetes, and secondary service connection is not warranted regardless of a current diagnosis. 38 C.F.R. § 3.310. The Veteran has not presented any lay or medical evidence asserting a continuity of symptomatology or otherwise indicated that hypertension was manifest in service or within the first post service year. Direct service connection is not warranted. 38 C.F.R. §§ 3.303, 3.303(b). For the above reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for service connection for hypertension must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. III. Entitlement to TDIU Total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See generally 38 C.F.R. § 4.16. Here, VA has only recognized the Veteran as having dysthymia for pension purposes. VA has not recognized the Veteran as having a service connected disability for compensation purposes. He does not meet the basic eligibility criteria of having a service connected disability, and the claim must be denied as a matter of law. Id.; see generally Dela Cruz, 15 Vet. App. at 149. ORDER Service connection for hypertension is denied. Entitlement to a total disability rating for individual unemployability (TDIU) is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs