Citation Nr: 1336080 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-05 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension, to include as due to service-connected diabetes. REPRESENTATION Appellant represented by: Amanda Jones, Attorney at Law ATTORNEY FOR THE BOARD T. Carmichael, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO), which denied service connection for hypertension. The Veteran timely appealed. On February 28, 2012, the Veteran requested a video conference that was scheduled for February 13, 2013. The record reflects the Veteran failed to appear. FINDING OF FACT 1. The Veteran has been shown to have hypertension that is causally or etiologically related to his service-connected disability of diabetes mellitus. CONCLUSION OF LAW The Veteran's hypertension is chronically aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by a pre-adjudication notice letter in July 2010. The letter advised the Veteran of what evidence was required to substantiate his claims, including a claim for secondary service connection and of his and VA's respective duties for obtaining evidence. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, private medical treatment records, the report of a VA examination in July 2010, and a clarifying VA examiner opinion dated January 2011. The examination and clarifying opinion was adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See 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 describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). A review of the Virtual VA and VBMS paperless claims processing systems do not reveal any additional documents pertinent to the present appeal. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to decide the appeal. He has been given many opportunities to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2011). Service Connection The Veteran contends that his diagnosed hypertension is related to service or aggravated by his service-connected diabetes mellitus. Specifically, he contends that he began having problems with blood pressure in 2009 following treatment for diabetes. The Veteran asserts that because he has diabetes, more medication is required to control elevated blood pressure, which is not the case for hypertension patients who do not suffer from diabetes. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). In order to establish direct service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Alternatively, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, hypertension) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service connected disability, which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2010); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. Layno v. Brown, 6 Vet. App. 465 (1994). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a) (1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). As noted above, hypertension is a chronic disease that is subject to presumptive service connection. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, the record shows that the Veteran was first diagnosed with hypertension in 2009. Private treatment records show that he had elevated blood pressure in 2009 and VA treatment records show an elevated blood pressure in 2011. There is no evidence that the Veteran did not have hypertension within one year of leaving the military in June 1970, nor has he so contended. Presumptive service connection is not warranted. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Veteran has been diagnosed with hypertension, satisfying the first element of a direct service connection claim. Hickson, 12 Vet. App. at 253. There is no evidence of an in-service event or incurrence of hypertension. In a June 1967 pre-enlistment report of medical history, the Veteran described his health as "good" and answered "no" to the question, "[h]ave you ever had or have you now...high or low blood pressure." Hypertension was not noted by the examining physician at his June 1967 enlistment examination. His blood pressure was 122/80. A May 1970 discharge examination report notes a blood pressure of 130/92. His STRs are negative for any diagnosis of or treatment for hypertension. The second element of a direct service connection claim has not been satisfied. Id. The Veteran has been diagnosed with hypertension and is currently service connected for diabetes mellitus, which satisfies the first and second elements of a claim for secondary service connection. Wallin, 11 Vet. App. at 512. In July 2010, the Veteran underwent a VA examination for diabetes mellitus. At the time of the examination the Veteran had three blood pressure (BP) readings reporting a BP of 150/92, 148/90 and 150/92. He reported a diagnosis of diabetes in 2008 and not knowing when his hypertension began, but, that it was before his diabetes. The examiner opined that the Veteran's hypertension was not secondary to or aggravated by normal course of diabetes because hypertension was diagnosed prior to diabetes. VA treatment records from the Myrtle Beach VAMC dated April 21, 2011 note the Veteran's hypertension as "severe and uncontrolled" with a BP of 192/102. Private medical treatment records from Dr. B.M. dated March 2010 and August 2011 report the Veteran had diabetes as early as April 2009 but provide no year for the onset of the Veteran's hypertension. A private examination conducted April 20, 2009 reported a blood pressure (BP) of 122/82. However, in a letter dated August 2011, Dr. B.M. opined that the Veteran's hypertension is likely aggravated and/or possibly caused by diabetes. He also stated that it can be expected for the Veteran's hypertension to worsen or continue to be aggravated due to his current diagnosis of diabetes mellitus, because "high blood pressure in diabetes often take3.5 - 4.0 meds to control blood pressure." Dr. B.M.'s opinion is "competent, credible, and persuasive, as it is based on correct facts and is supported by a rationale." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the Veteran's non-specific statement regarding the onset of his hypertension to be of little probative value because the Veteran is not competent to diagnose himself with hypertension. The VA examiner's opinion regarding the Veteran's claim of aggravation is also of little probative value as far as it was based solely on the Veteran's report of his medical history. See Reonal v. Brown, 5 Vet. App. 458, 461 1993) (medical opinion based upon an inaccurate factual premise has no probative value). A medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The record contains a private medical nexus opinion dated August 8, 2011 stating the Veteran's hypertension is aggravated by his diabetes mellitus. VA treatment records also report a higher blood pressure level and severe and uncontrolled hypertension in April 2011. This evidence tends to corroborate Dr. B.M.'s opinion that the Veteran's hypertension is likely to worsen due to his diabetes. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Veteran's claim for service connection for hypertension must be granted under the theory of secondary service connection. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for hypertension is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs