Citation Nr: 1336342 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-07 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to January 1972. This matter initially came before the Board of Veterans' Appeals (Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO denied entitlement to service connection for hypertension. In December 2011, the Board remanded the claim to the RO, via the Appeals Management Center (AMC), for additional development. For the reasons stated below, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Hypertension is neither caused nor permanently made worse by service connected diabetes. 2. Hypertension did not manifest in service, within the one year presumptive period or for many years thereafter, and is unrelated to service. CONCLUSIONS OF LAW 1. Hypertension is not proximately due to, the result of, or aggravated by a service connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.159, 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). 2. Hypertension was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 (2006). In a March 2006 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for hypertension, to include on a secondary basis. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the March 2006 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in the March 206 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post service private and VA treatment records. The Board notes that additional VA treatment records added to the claims file since the Board's December 2011 remand have been associated with the file via Virtual VA rather than the physical claims file. Some of those records postdate the RO/AMC's most recent, July 2012 supplemental statement of the case. None of these treatment records, however, relate to the etiology of the Veteran's hypertension. These records are therefore not pertinent to the issue on appeal and a remand for initial agency of original jurisdiction (AOJ) review of this evidence is not required. 38 C.F.R. § 20.1304(c) (2013). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for entitlement to service connection for hypertension is thus ready to be considered on the merits. Analysis While service connection is warranted where a current disability resulted from an injury or disease incurred in or aggravated by active military service, 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a), service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a non-service connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). This latter provision was added as part of an amendment intended conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would concede aggravation. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). As the new regulation, which took effect on October 10, 2006, after the Veteran filed his March 2006 claim, is more restrictive, the former regulation and case law is applicable. In any event, the Board will find below that there is no aggravation. The Veteran claims that his hypertension is secondary to his service connected diabetes. Entitlement to service connection for diabetes was granted in July 2003, effective April 2003. On the April 2004 VA examination, the Veteran indicated that he had been diagnosed with diabetes about three years previously. This approximate time frame is consistent with the evidence of record, as a February 2002 Palmetto Primary Care treatment note contains an assessment of diabetes mellitus, adult onset, new. On the October 2007 VA hypertension examination, the Veteran indicated that he was diagnosed with hypertension in 2006 and this is consistent with VA treatment notes showing diagnoses of hypertension at around this time. There are three medical opinions as to the relationship between the Veteran's diabetes and his hypertension. The October 2007 VA examiner prepared a January 2008 addendum, in which she concluded, after reviewing the Veteran's claims file, that she did not believe the Veteran's hypertension was caused by his diabetes. She noted that the medical literature indicated that hypertension is a risk factor for multiple comorbidities such as heart disease and dyslipidemia and a common problem in diabetes patients. She also noted that there is a close relationship between hypertension and diabetes and chronic renal disease, "but it cannot be speculated that his diabetes mellitus caused his hypertension." Reviewing this opinion in its December 2011 remand, the Board found that it remained unclear whether the Veteran's hypertension was aggravated by his diabetes, and remanded the claim for an examination and opinion on this question. The January 2012 VA examiner, who reviewed the electronic medical records but not the claims file, checked the box applicable to direct service connection, indicating that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In her rationale, however, the examiner indicated Veteran's electronic medical records showed normal BUN and creatinine readings in November 2011 and well controlled blood pressure from October through December 2011. She noted there was no clinical evidence of kidney disease based on these normal lab values and that blood pressure was well controlled. She also noted that there was no diabetic retinopathy on a recent eye examination. She found that it was less likely than not that the Veteran's well controlled hypertension was being aggravated, i.e., permanently increased in severity beyond the natural progression of the disease, by his diabetes. She noted that the claims file was not available. In a May 9, 2012 addendum, the examiner indicated that she had reviewed the claims file and STRs and reiterated her rationale for the conclusion that the Veteran's hypertension was not likely being aggravated by his diabetes. A May 15, 2012 treatment note indicates that the author, a VA physician, indicated that he was not the original examiner but was Board certified in internal medicine and he had reviewed the claims file and the May 9, 2012 addendum. He indicated that the author of the addendum (whom he referred to as "doctor," but who was in fact a nurse practitioner) was correct in stating that the normal renal tests indicate that there is no aggravation of the Veteran's hypertension by his diabetes, and that there was nothing in the claims file to change the opinion as expressed in the May 9, 2012 addendum. Based on the above, the Board finds that the three medical opinions are adequate to establish that the Veteran's hypertension is neither caused nor aggravated by his diabetes, and also therefore complied with the Board's December 2011 remand instructions. The October 2007 VA examiner, in her January 2008 addendum, cited medical literature, acknowledged the potential relationship between hypertension and diabetes and renal disease, but concluded that it could not be "speculated" that the diabetes caused the hypertension. Although not a model of clarity, this opinion indicates that the examiner believed that, based on the medical literature and evidence of record, the evidence did not warrant the conclusion that the hypertension was caused by the diabetes. As the conclusion was based on an accurate characterization of the evidence of record, it is entitled to at least some probative weight in indicating that diabetes did not cause hypertension. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). As to the words "speculated," the Court in Jones v. Shinseki, 23 Vet. App. 382, 290 (2009), listed the circumstances that must be present before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative. Here, however, the examiner did not indicate that an etiology opinion would be speculative; rather, she indicated that it could not be "speculated," i.e., opined, that the hypertension was caused by the diabetes. Jones is therefore inapposite. As to aggravation, the January 2012 VA examiner explained the reasons for the conclusion that diabetes did not aggravate hypertension, including the normal kidney readings and the blood pressure readings indicating that hypertension was well controlled and the physician concurred with this reasoning in his May 15, 2012 note. Thus, although the January 2012 VA examiner erroneously checked the box indicating her opinion related to direct service connection, her rationale indicated that the opinion related to secondary service connection, specifically aggravation. As she explained the reasons for her conclusions based on an accurate characterization of the evidence of record, her opinion finding a lack of aggravation is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). There is no contrary medical opinion in the evidence of record. There are multiple VA treatment notes that indicate that hypertension was controlled on monotherapy, but there is also an April 2009 VA treatment note in Virtual VA indicates that the Veteran had hypertension with suboptimal control secondary to pain response. The treatment plan was to monitor blood pressure trend with better pain control. This treatment note is ambiguous, but to the extent it contains an opinion on the etiology of hypertension, it does not indicate a relationship to diabetes. The Board must also consider the lay statements of the Veteran indicating that his hypertension is related to his diabetes. As to whether the Veteran is competent to opine on this question, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to the relationship between diabetes and hypertension is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes 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"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In any event, to the extent the Veteran's testimony on this question is competent, the Board finds that the probative value of the specific opinions of the trained health care professionals discussed above outweighs that of the more general lay assertions of the Veteran. The evidence thus weighs against entitlement to service connection for hypertension secondary to diabetes. The Board has also considered entitlement to service connection for hypertension on a direct incurrence basis. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). Establishing service connection on a direct incurrence basis generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran has been diagnosed with hypertension, the Board will consider whether 38 C.F.R. § 3.303(b) is for application in this case. Moreover, as hypertension is a chronic disease and the Veteran had 90 days or more of active service during a war period, this disease is presumed to have been incurred in service if it manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In this case, however, the Veteran does not contend, and the evidence does not reflect, that hypertension manifested in service, within the one year presumptive period for chronic diseases or for many years thereafter, or that hypertension is otherwise related to service to include on a continuity of symptomatology basis. There are no notations of complaints, symptoms, treatment, or diagnoses relating to hypertension in the STRs, the heart and vascular systems were normal on the December 1971 separation examination, on which blood pressure was also a normal 138/76, and the Veteran indicated on the separation report of medical history that he did not have and had never had high blood pressure. Moreover, as noted above, hypertension did not manifest until many years after service and the Veteran does not contend otherwise. The evidence thus weighs against entitlement to service connection for hypertension on a direct or presumptive basis as well. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for hypertension on any basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus type II is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs