Citation Nr: 1334705 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-05 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for hypertensive cardiovascular disease, to include as secondary to service-connected diabetes mellitus, type II, and generalized anxiety disorder with major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Seattle, Washington. During the course of the appeal, the claims were transferred to the VA RO in Chicago. In September 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims folder. This matter has been previously remanded for additional development in April 2010 and December 2011. In February 2013, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to issue a supplemental statement of the case. The action specified in the February 2013 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for an acquired psychiatric disability was also remanded in February 2013. Thereafter, in a May 2013 rating decision, the RO granted entitlement to service connection for generalized anxiety disorder with major depressive disorder and assigned an initial disability rating. As the Veteran has not contested the initial rating or effective date for the award of service connection, that claim is considered resolved on the merits. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The remaining issue of entitlement to service connection for hypertensive cardiovascular disease was then returned to the Board for further appellate proceedings. (It is noted that this claim of service connection had been previously remanded by the U.S. Court of Appeals for Veterans Claims.) FINDING OF FACT The Veteran's hypertensive cardiovascular disease is not related to a disease or injury in service; it did not manifest within one year of service; and it was not caused or permanently aggravated by service connected diabetes mellitus type II or generalized anxiety disorder with major depressive disorder. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertensive cardiovascular disease, to include as secondary to service connected diabetes mellitus, type II, and generalized anxiety disorder with major depressive disorder, have not been met. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Cardiovascular-renal disease, including hypertension, is recognized as a chronic condition by 38 C.F.R. § 3.309(a). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. The Veteran is seeking service connection for hypertensive cardiovascular disease. The Veteran argues that his hypertensive heart disease is proximately due to, or aggravated beyond its natural progression by his service-connected disabilities, specifically, his service connected diabetes mellitus and generalized anxiety disorder with major depressive disorder. However, he has failed to present any evidence in support of this claim. There is no evidence in the Veteran's service treatment records that he suffered from hypertension or heart disease during his active military service. Post-service, the Veteran has provided conflicting accounts of when he was first diagnosed with hypertension. At a February 1996 evaluation performed as part of a claim for disability benefits, the Veteran claimed that he has had high blood pressure since 1981. At a September 2005 VA examination, the Veteran reported an approximately ten year history of hypertension and cardiomyopathy. At his September 2009 Travel Board hearing, the Veteran admitted that his memory is poor and that he cannot remember if he had any heart problems in service, but he testified that he first began receiving treatment for high blood pressure fifteen years ago. The earliest medical record of any heart problems the Board was able to detect in the record was a June 1986 Electrocardiographic Record which noted diagnoses of arterial hypertension, mild sinus arrhythmia, and a borderline EKG result of slight electrical hypertrophy of the left ventricle. However, a June 1986 VA examination concluded that there was no organic heart disease. However, regardless of exactly when the Veteran's hypertension first had onset, the Board can find no evidence that the Veteran was diagnosed with or treated for hypertension within one year of service. As there is no evidence that the Veteran's hypertensive cardiovascular disease had onset in service or within one year of service, the Board finds that entitlement to service connection cannot be granted on a direct basis or presumptively under 38 C.F.R. § 3.307. However, the Board must also consider the Veteran's assertion that his cardiovascular disease was caused or permanently aggravated by one of his service connected disabilities. The Veteran was afforded a VA examination in September 2005. The diagnoses were hypertensive cardiovascular disease with non-ischemic cardiomyopathy, which the examiner opined "is unrelated to [the Veteran's] diabetes mellitus." He based this conclusion on the fact that the Veteran's hypertension was diagnosed many years before the Veteran's diabetes mellitus and he had normal renal function. However, he did not address whether the Veteran's hypertension or cardiomyopathy could have been permanently aggravated by the Veteran's diabetes mellitus or his anxiety and depression. In May 2010, the Veteran was afforded a new VA examination. The examination report indicates a diagnosis of hypertensive cardiovascular disease with non-ischemic cardiomyopathy. The VA examiner concluded as follows: It is less likely than not... that the Veteran's hypertensive cardiovascular disease is a result of the Veteran's service-connected type II diabetes mellitus. The rationale is as follows. The Veteran had longstanding hypertension dating back approximately two decades. In reviewing the medical record in 1995 he had an ejection fraction of 45 percent with ventricular hypertrophy at that time. It clearly predates the development of diabetes. Additionally, diabetes does not cause hypertension or hypertensive cardiovascular disease. It can, however, aggravate, as well as act as a comorbid factor in the development of atherosclerotic heart disease. [The Veteran] does not have renal failure or renal insufficiency associated with his diabetes of any significance. The Board is satisfied with this explanation to the extent it rules out diabetes mellitus as the cause of hypertensive cardiovascular disease (particularly since the latter condition predated the former condition by many years). However, concerning the question of whether diabetes mellitus chronically aggravated the Veteran's hypertensive cardiovascular disease, the opinion is considerably less clear, even stating at one point that aggravation is a known possibility from general medical knowledge. In a January 2012 addendum, the examiner clarified his earlier opinion, explaining that: Although diabetes can aggravate ischemic heart disease, the Veteran is not known to have ischemic heart disease and therefore his hypertension, which has predated his diabetes substantially and which is the principle causative agent in any subsequent cardiovascular disease, is the predominant force in this situation and therefore, it is less likely than not, less than 50% probability, that the Veteran's hypertensive cardiovascular disease is related either primarily or secondarily to his service connected type 2 diabetes mellitus. Furthermore, diabetes is not the cause of hypertensive cardiovascular disease and in the absence of significant renal insufficiency, diabetes does not chronically aggravate hypertension or hypertensive cardiovascular disease. In June 2013, a new VA examiner addressed whether any of the Veteran's service connected disabilities, including his service connected acquired psychiatric disability, caused or permanently aggravated his hypertensive cardiovascular disease. After reviewing the available record, the VA examiner concluded that it is less likely than not that any of the Veteran's service connected disabilities caused or permanently aggravated the Veteran's heart condition. The examiner explained that the Veteran's cardiomyopathy is due to his hypertension and none of the Veteran's service connected disabilities is known to have a relationship with either hypertension or cardiomyopathy. Furthermore, the examiner noted that the Veteran's heart has not become further enlarged over the past 14 years and his ejection fracture has remained constant at 40%, which indicates that the Veteran's disability has not been permanently aggravated by any of the Veteran's service connected disabilities. Based on the above medical opinions, the Board finds that entitlement to service connection for hypertensive cardiovascular disease cannot be granted on a secondary basis. The Veteran has not presented any medical evidence that contradicts the opinions of the VA examiners, who have uniformly concluded that his cardiovascular disease is unrelated to his military service, including any service connected disabilities. Additionally, to the extent that the Veteran himself believes that there is a relationship between his military service or his service connected disabilities and his current heart condition, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has hypertensive vascular disease due to a service connected disability is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. In conclusion there is no evidence that the Veteran's claimed heart condition had onset in service or within one year of service nor is there any evidence to support the Veteran's claims that his hypertensive cardiovascular disease was caused or permanently aggravated by a service connected disability such as diabetes mellitus, type II or generalized anxiety disorder with major depressive disorder. Accordingly, entitlement to service connection for hypertensive cardiovascular disease is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letters sent to the Veteran in April 2005 and April 2010. These letters informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in April 2010, which informed the Veteran of how VA assigned disability ratings and effective dates. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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 RO has obtained the Veteran's service treatment records, as well as VA treatment records and records from the Social Security Administration (SSA). The Veteran was provided an opportunity to set forth his contentions during the September 2009 Travel Board hearing before the undersigned Veterans Law Judge. In this regard, the Board notes that in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify. In this case, during the Board hearing, testimony was elicited regarding the elements that were lacking to substantiate the claim and the Veteran and his representative demonstrated actual knowledge of this information. The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim). Further, a review of the record also reveals no assertion, by the Veteran or his representative, that VA or the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any other prejudice in the conduct of the Board hearing. Accordingly, the Veteran is not shown to be prejudiced on this basis. The appellant was afforded a VA medical examination in September 2005, May 2010, and June 2013. These examinations are adequate and probative for VA purposes because the examiners relied on sufficient facts and data, provided a rationale for the opinions rendered, and there is no reason to believe that the examiners did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Significantly, neither the appellant 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. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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 v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for hypertensive cardiovascular disease, also claimed as secondary to service connected diabetes mellitus, type II, and generalized anxiety disorder with major depressive disorder is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs