Citation Nr: 1334366 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-09 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for hypertension, to include as due to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran had active service from May 1953 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2012. At that time, the Board remanded the issues of entitlement to service connection for asbestosis and hypertension for additional development of the record. Subsequently, in a December 2012 rating decision, the RO granted service connection for asbestosis. This is a full grant of that issue on appeal, and it is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In April 2013, the Board obtained a Veterans Health Administration (VHA) opinion in connection with the appeal. The Veteran was advised of his right to provide additional evidence or argument in response to that opinion. He responded to the opinion with additional argument in September 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board again notes that in a January 2012 statement, the Veteran indicated his service-connected diabetes causes him to regulate his activities. Such statement can be construed as a claim for an increased rating for diabetes. This issue does not appear to have been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT The Veteran's hypertension was not shown in service or for many years thereafter, and the most probative evidence indicates the condition is not related to service or his service-connected diabetes mellitus. CONCLUSION OF LAW The requirements for establishing service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a February 2009 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has obtained relevant records including service treatment records, post service treatment records, private treatment records, VA examination reports, and a VHA medical opinion. The Board notes that actions requested in the prior remand have been undertaken. A VA examination was conducted in October 2012, and a VHA opinion obtained in April 2013. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument to support his claim. Therefore, he was 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 Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran asserts that service connection is warranted for hypertension, to include as due to service-connected diabetes mellitus. It has been verified that the Veteran was in the Republic of Vietnam during his active duty service. Service connection may be established 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Id; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be competent evidence of a current disability and competent evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A veteran who had active service in the Republic of Vietnam from January 9, 1962, to May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service. When such a veteran develops a disorder listed in 38 C.F.R. § 3.309(e), which disorders have been shown to be caused by exposure to Agent Orange, to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Further, VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for hypertension. See 75 Fed. Reg. 81332 (Dec. 27, 2010). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all 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 his 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 the 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service treatment records are silent for complaints, treatment, or findings of hypertension. Post-service private treatment records show that the Veteran was diagnosed with hypertensive cardiovascular disease in June 2000 by Dr. Pavon. The basis for this diagnosis was not provided. Subsequent records from this physician and others in his practice, however, note only a diagnosis of arterial hypertension; hypertensive cardiovascular disease was not listed as a diagnosed at any subsequent point. A January 2001 treatment note reflects that the Veteran was taking medication for his hypertension. A July 2002 private treatment record by Dr. Hodge indicates that the Veteran had been treated for hypertension for the last two years. A December 2006 treatment record by Dr. Hodge notes that the Veteran's hypertension was stable. The Veteran was afforded a VA examination in July 2009. The examiner reported that the Veteran had a history of hypertension for 19 years, and that he was using medication for the condition. The Veteran's three blood pressure readings at the time of the examination were 130/78, 130/76 and 130/76. The Veteran was diagnosed with hypertension. The subjective factors were the Veteran's history and the objective factors were his use of medication. In November 2009, the Veteran submitted written correspondence from Dr. Hodge which noted that the Veteran had been diagnosed with diabetes in February 2000 and with hypertension later on that year in June 2000. The Veteran underwent a VA examination in October 2011. The Veteran stated that he was diagnosed with hypertension in 1995 and that he was taking medication for the condition. The Veteran's three blood pressure readings were all 138/62. The examiner diagnosed the Veteran with essential hypertension. The examiner reported that at that time, the Veteran's condition was active. The examiner noted that the Veteran had type II diabetes mellitus. The examiner found no evidence of hypertensive heart disease and no secondary complications related to the Veteran's renal system. The examiner stated that the Veteran did not have any non-diabetic conditions that were aggravated by his diabetes. The Veteran was afforded another VA examination in October 2012. The Veteran stated that he was not sure when his hypertension began, but that he started taking medication in June 2000. The Veteran's three blood pressure readings during the examination were 130/71, 114/67 and 132/72. Following examination, the examiner opined that the Veteran's blood pressure was less likely than not related to diabetes since at the time the Veteran's blood pressure was found, his diabetes was found, and since then his blood pressure had been controlled. In April 2013, a VHA opinion was received at the Board. A specialist in internal medicine reviewed the Veteran's claims file and opined that it was less likely that the Veteran's hypertension was related to his herbicide exposure during service. The specialist stated that there is no known association between herbicide exposure and chronic hypertension. He reported that there is nothing unusual about the Veteran's hypertension that would suggest any cause other than essential hypertension. The specialist also opined that it is less likely that the Veteran's hypertension is caused by his service-connected diabetes. The specialist stated that it was most likely that the Veteran's hypertension either preceded the diabetes or appeared around the same time. As such, the time course would make it very unlikely that the diabetes and hypertension were related in any way. He noted that type II diabetes of long-standing duration can increase the likelihood of developing hypertension, but in the majority of cases, the two conditions co-exist independently without one causing the other. The specialist also noted that advanced renal disease of any type is a risk factor for developing hypertension. He explained that if the Veteran never had hypertension and then developed it after sustaining renal damage from diabetes, an argument could be made that the diabetes led to the hypertension. However, it did not appear to be the case for this Veteran. Additionally, the specialist opined that it was less likely that the Veteran's hypertension was worsened by his diabetes, as there is no evidence of record of severe or poorly controlled hypertension. He stated that diabetes, in general, does not cause the worsening of hypertension unless severe disease is present, which is not the case for the Veteran. Upon review of the record, the Board finds that the preponderance of the evidence is against the claim. The record does not reflect that that Veteran suffered from hypertension during service or for many years thereafter. In this regard, the Veteran's service treatment records do not reflect a diagnosis of hypertension or chronic elevated blood pressure readings. The first evidence of record of hypertension was in June 2000, many years after service discharge. Moreover, hypertension is not a disease established as being related to Agent Orange exposure under 38 C.F.R. § 3.309(e). There is no competent evidence of record establishing a link between the Veteran's active service and his hypertension. Therefore, entitlement to service connection for hypertension on a direct basis or presumptive basis is not warranted. The Veteran's primary argument in this case, however, is that his hypertension is due to his service-connected diabetes mellitus. Having carefully reviewed the claims file, the Board determines that the preponderance of the evidence is against the claim for service connection for hypertension as secondary to the Veteran's service-connected diabetes mellitus. The record contains no competent opinion linking the Veteran's diabetes mellitus to his hypertension or indicating that the Veteran's diabetes mellitus has worsened his hypertension. Rather, the October 2011 and October 2012 VA examiners opined that the Veteran's diabetes mellitus did not cause his hypertension. The April 2013 VHA specialist explained that since hypertension was diagnosed either before or around the same time as diabetes mellitus, diabetes mellitus would not be the cause of the Veteran's hypertension. Further, the specialist found that there was no evidence that the Veteran's hypertension was caused by his diabetes or any other specific cause which would rightly be termed "essential" hypertension. The specialist also found that the Veteran's hypertension was not worsened by his diabetes disease. The opinion was based on a thorough review of the claims file and provided adequate rationale for the conclusions reached. As such, this opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). There are no medical opinions to the contrary. While the Veteran believes that his hypertension is related to Agent Orange exposure or his service connected diabetes mellitus, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Hypertension can have multiple causes; the question as to the etiology of such disability falls outside the realm of common knowledge of a lay person and requires medical expertise to determine. Thus, while the Veteran is competent to describe his symptoms, he is not competent to opine on such a complex medical question as the etiology of his hypertension. As such, the Board accords more significantly more weight to the medical evidence than to the Veteran's lay assertions. In summary, the preponderance of the evidence of record indicates that the Veteran's hypertension was not shown in service or for many years thereafter, is not related to service, and is not caused or aggravated by his service-connected diabetes mellitus. Accordingly, service connection for hypertension is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for hypertension, to include as due to service-connected type II diabetes mellitus, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs