Citation Nr: 1334937	
Decision Date: 10/31/13    Archive Date: 11/06/13

DOCKET NO.  06-13 259	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for hypertension secondary to service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to an increased rating for diabetic peripheral neuropathy of the right lower extremity, currently rated 40 percent.  

3.  Entitlement to an increased rating for diabetic peripheral neuropathy of the left lower extremity, currently rated 40 percent.  

4.  Entitlement to financial assistance in the purchase of an automobile or other conveyance or adaptive equipment.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

S.J. Janec, Counsel


INTRODUCTION

The Veteran served on active duty from May 1968 to May 1970.

This case initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for diabetic peripheral neuropathy of the upper extremities and awarded separate 10 percent ratings effective May 16, 2005; and denied ratings in excess of 20 percent for diabetic peripheral neuropathy of the lower extremities.  

A January 2012 rating decision granted increased ratings for of 30 percent for right upper extremity and 20 percent for the left upper extremity, effective December 15, 2009.  The January 2012 rating decision also granted 40 percent ratings for the left and right lower extremities, effective May 16, 2005.  

In a September 2012 decision, the Board denied ratings in excess of 40 percent for peripheral neuropathy of the bilateral lower extremities, granted 20 percent ratings for peripheral neuropathy of the bilateral upper extremities prior to December 15, 2009, denied a rating in excess of 30 percent for peripheral neuropathy of the right upper extremity from December 15, 2009, and denied a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity from December 15, 2009.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims.

In a May 2013 Order, the Court granted a Joint Motion for Partial Remand, vacated the portion of the Board's September 2012 decision that denied ratings in excess of 40 percent for peripheral neuropathy of the bilateral lower extremities, and remanded the matter to the Board for further development and readjudication.  
In May 2012, the Veteran perfected appeals on the issues of entitlement to service connection for hypertension secondary to service-connected PTSD and entitlement to financial assistance in the purchase of an automobile or other conveyance or adaptive equipment.  Initially, the Veteran requested a hearing before a Veterans Law Judge for these claims.  Subsequently, he indicated that he did not want such hearing.  Therefore, his hearing request is considered withdrawn.  

The issues of entitlement to ratings in excess of 40 percent for peripheral neuropathy of the bilateral lower extremities and entitlement to financial assistance in the purchase of an automobile or other conveyance or adaptive equipment are REMANDED to the RO via the Appeals Management Center in Washington, D.C.


FINDING OF FACT

The most probative evidence of record shows that the Veteran's currently manifest hypertension did not have its onset during a period of active duty; was not manifest to a compensable degree within one year of discharge; and is not proximately due to or aggravated by a service-connected disability, including PTSD.  


CONCLUSION OF LAW

Hypertension was not incurred in or aggravated by active service, may not be presumed to have been incurred in service, and is not proximately due to or aggravated by a service-connected disability.  38 U.S.C.A. §§ 101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309(a), 3.310 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must:  (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009). 

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was provided appropriate notice in letter dated in November 2009, prior to the rating decision on appeal.  

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim.  Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim).  

Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent March 2013 supplemental statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).  

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained an examination with an opinion with respect to the claim on appeal and the report is adequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate).  Therefore, the Board finds that VA has satisfied the duty to assist provisions of law.  Consequently, no further notice or assistance to the appellant is required to fulfill VA's duty to assist development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013).  Evidence of continuity of symptomatology of a disability from the time of service to the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).  

Certain chronic disabilities, such as hypertension, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013).  

Service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995).  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.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310, Part 4 (2013).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992).  Lay 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 (Fed. Cir. 2007).  

In adjudicating a claim, the Board must assess the competence and credibility of the claimant.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001).  Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67 (1997).  Although interest may affect the credibility of testimony, it does not affect competency to testify.  Cartwright v. Derwinski, 2 Vet. App. 24 (1991).  

It is the responsibility of the Board to determine the probative weight to be assigned as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another.  Winsett v. West, 11 Vet. App. 420 (1998).  The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion.  Bloom v. West, 12 Vet. App. 185 (1999).  If all the evidence is in relative equipoise, reasonable doubt should be resolved in the Veteran's favor, and the claim should be granted.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  If the preponderance of the evidence is against the claim, the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

The Board finds that the preponderance of the evidence is against the claim for service connection for hypertension, including secondary to service-connected PTSD, because the most probative evidence of record, the August 2009 VA examination report, concluded that it was not likely that the Veteran's current disease was related to or aggravated by his service-connected PTSD but was more likely due to things such as age, body mass, sex, family history, and smoking.  Winsett v. West, 11 Vet. App. 420 (1998).  That opinion was based on a full review of the record, including the service medical reports, the Veteran's statements, the other medical opinions, and a thorough clinical evaluation.  Notably, the examiner explained that the literature showed no findings of hypertension caused by any psychiatric illnesses, and while it was possible that an illness that caused a constant agitated state could cause blood pressure elevation, one would also expect to find a degree of tachycardia as well.  However, the Veteran had none.  Bloom v. West, 12 Vet. App. 185 (1999).  

The Board finds that the medical statements presented by the Veteran from G.K., M.D., (undated), H.G., M.D. (handwritten and undated), and B.G.C., M.D. (dated August 2004), are lacking in probative value they do not provide a rationale for their opinions and did cite to any literature to support their statements.  Dr. K. remarked that the Veteran's PTSD was "a contributing etiologic factor" and "at a minimum at least aggravates it."  However, Dr. K. provided no specific clinical data supporting that opinion and did not review all of the Veteran's medical records.  He also did not discuss any baseline level of disability which is necessary when establishing service connection on a secondary basis by aggravation.  38 C.F.R. § 3.310 (2013).  Dr. G. stated that the PTSD causes chronic stress which is known to cause blood pressure elevation and since PTSD symptoms are treated with antihypertensive agents, the hypertension is related to the PTSD.  However, Dr. G. also did not provide specific clinical data and did not review the file.  Finally, Dr. C.'s statement that it was more likely than not that the Veteran's PTSD aggravates his hypertension and may be responsible for the development of it in the Veteran man who has no family history did not provide any rationale for that conclusion and did not cite to any medical literature.  Therefore, the Board has accorded those statements less probative weight.  Winsett v. West, 11 Vet. App. 420 (1998); Bloom v. West, 12 Vet. App. 185 (1999).  

The Board observes that the medical evidence does not show, and the Veteran does not allege, that his hypertension was manifest during service or within one year of his discharge.  In fact, upon VA examination in August 2009, he stated that his hypertension was initially diagnosed at least 10 years prior, which is more than 20 years after his separation from service.  Therefore, service connection on a direct or a presumptive basis is not warranted.  

The Board also observes that although lay persons are competent to provide opinions on some medical issues, the specific disability in this case of hypertension falls outside the realm of common knowledge of a lay person.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Hypertension is a complex disease that requires specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and it is not susceptible of lay opinions on etiology.  Therefore, the Veteran's statements cannot be accepted as competent evidence sufficient to establish service connection on either a direct or secondary basis.  

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for hypertension, and the claim must be denied.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for hypertension, including secondary to service-connected PTSD, is denied.  


REMAND

In the Joint Motion, the parties agreed that there had not been substantial compliance with the Board's October 2010 remand instructions.  Specifically, they agreed that the November 2010 VA examination and opinion was inadequate because it did not include the electromyography and nerve conduction studies requested.  Although the examiner stated that such studies were not needed to diagnose the condition, the parties stated that they were necessary to evaluate the severity of the Veteran's disability and satisfactory explanation for failing to obtain them had not been provided.  Therefore, a remand is necessary.  A remand by the Board confers on a claimant the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268 (1998) ().  

The issue of entitlement to financial assistance in the purchase of an automobile or other conveyance or adaptive equipment is inextricably intertwined with the issue of entitlement to higher ratings for the peripheral neuropathy of the lower extremities.  Harris v. Derwinski, 1 Vet. App. 180 (1990) (issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless all are adjudicated).  Therefore, a decision on that claim must be deferred pending the development needed as discussed below.  The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Obtain the names and addresses of all medical care providers who treated the Veteran for peripheral neuropathy of the bilateral lower extremities since November 2010.  After securing the necessary release, obtain those records.

2.  Schedule the Veteran for a VA peripheral nerves examination to assess the severity of peripheral neuropathy of the lower extremities.  The examiner must review the claims folder and that review must be noted in the report.  All indicated tests and studies should be performed, to include electromyography and nerve conduction studies, and all findings should be set forth in detail.  The examiner should describe all symptoms and manifestations attributable to the peripheral neuropathy of the right and left lower extremities, rated on the basis of neuralgia involving the sciatic nerve under 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2013) and report in detail all functional impairment affecting sensory or motor function.  The examiner should specifically indicate the degree of paralysis, complete or incomplete, and whether any neuropathy or paralysis is mild, moderate, moderately severe, or severe, for both the right and left lower extremities.  The examiner should also state whether effective function remains for the Veteran's feet other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance.  38 C.F.R. §§ 3.350(a)(2), 4.63 (2013).  

3.  Then readjudicate the claims.  If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the claim to the Board.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs