Citation Nr: 1336405 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-30 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for hypertension, as secondary to service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1967 and from April 1970 to May 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2005, the Veteran filed a claim to include entitlement to service connection for diabetes mellitus type II, associated with herbicide exposure, and entitlement to service connection for bilateral peripheral neuropathy. In May 2005, the Veteran filed a claim for entitlement to service-connection for hypertension, secondary to diabetes mellitus type II. In November 2005, the RO granted the Veteran's claim of service-connection for diabetes mellitus type II associated with herbicide exposure, and denied the Veteran's claims for secondary service-connection for hypertension and bilateral peripheral neuropathy, upper and lower extremities, as associated with his diabetes mellitus type II. In November 2006, the Veteran filed a Notice of Disagreement (NOD) with the rating decision. The RO issued a Statement of the Case (SOC) and two Supplemental SOCs, the Veteran perfected his appeal, which was then certified to the Board. The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in March 2013, and a transcript of that proceeding has been associated with the claims file. In July 2013, the Board granted the Veteran's claims of entitlement to peripheral neuropathy of the right and left upper and lower extremities, as secondary to his service-connected diabetes mellitus type II. The Board additionally remanded his claim of entitlement to hypertension, as secondary to diabetes mellitus type II, for further development, which has been completed. The RO issued a Supplemental Statement of the Case in September 2013, and the claim is now returned to the Board. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's hypertension is related to any service-connected disability, to include diabetes mellitus type II. CONCLUSION OF LAW The criteria for hypertension, as secondary to service-connected diabetes mellitus type II, have not been met. See 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Remand Compliance This appeal involves a July 2013 Board remand for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008), citing Dyment v. West, 13 Vet. App. 141, 146-147 (1999). In this case, the Board finds that the RO substantially complied with the Board's July 2013 remand instructions. The instruction to provide the Veteran with notice explaining the initial disability rating and effective date elements of a service connection claim, as required under Dingess v. Nicholson, 19 Vet. App. 473 (2006), was satisfied by way of letter sent to the Veteran in August 2013. Outstanding relevant VA treatment records dating from November 2010 to August 2013 have been obtained and associated with the claims file. Finally, the instruction to schedule the Veteran for a VA examination to determine the etiology of his hypertension and provide an opinion as to whether it is at least as likely as not that any current hypertension was caused by or aggravated by his service-connected diabetes mellitus was completed in August 2013. The examination report reflects that the examiner reviewed the claims file, conducted an in person examination of the Veteran, described her objective findings, and specifically opined on whether the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus. II. Veterans Claims Assistance Act of 2000 VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is warranted. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. at 486. The VCAA applies to the instant claim. The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in June 2005 and August 2013. The letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letters also informed the Veteran of how ratings and effective dates are assigned. Although this last notice was delivered after the initial denial of the claim, the AOJ subsequently readjudicated the claim based on all the evidence in the September 2013 supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Thus, the Veteran was not precluded from participating effectively in the processing of his claim and the late notice did not affect the essential fairness of the decision. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained the Veteran's service and VA treatment records and associated them with his claims file. In addition, VA afforded the Veteran an examination and obtained an expert opinion in August 2013. In his October 2013 Informal Hearing Presentation (IHP), the Veteran, through his representative, contends that the August 2013 VA examination and opinion are inadequate on two bases. Specifically, the Veteran first contends that the medical examiner's opinion is fallible because he "negated the Veteran's contention [that his hypertension is linked to his service-connected diabetes] due to him not suffering from neuropathy." The Veteran then points to the fact that he "was recently rated in July 2013 for quadrilateral upper and lower extremity neuropathy," and thus concludes that the August 2013 opinion is "invalidated and moot." A review of the August 2013 examination and opinion shows that the Veteran is mistaken regarding his assertion that the examiner's nexus opinion relies on the absence of a neuropathy diagnosis. Indeed, the Board recognizes that the Veteran indeed has a current diagnosis and is service-connected for peripheral neuropathy of the upper and lower extremities, a condition which affects the peripheral nervous system; however, the Board additionally notes that the August 2013 examiner's opinion relied on the absence of evidence of diabetic nephropathy, a distinct and separate condition which affects the kidneys. Dorland's Illustrated Medical Dictionary, 1241 & 1268 (32nd ed. 2012). Specifically, the examiner opined that "[i]f the Veteran's hypertension was affected by his service-connected diabetes mellitus type II[,] the Veteran would have evidence of diabetic nephropathy." The examiner then found that "[t]he Veteran is without a diagnosis or findings for diabetic nephropathy," and accordingly opined that the Veteran's hypertension was not caused or aggravated by his diabetes. Thus, the Board finds that the examiner's rationale in relying on the lack of evidence of diabetic nephropathy does not render the examination inadequate. The Veteran next asserts that the August 2013 VA examination is inadequate because the examiner failed "to adequate[ly] examine and discuss the Veteran's claim relative to his present treatment," and "the Veteran's medicines were not considered in relation to the Veteran's claimed hypertension." The Veteran further contends that the examiner's finding that the Veteran does not currently suffer from hypertension is incorrect because she failed to recognize that the Veteran's cholesterol medicine, Simvastin, indirectly treats his hypertension. Specifically, the Veteran states that Simvastin contains Statin, a medicine that reduces restrictions known to cause hypertensive presentation of blood pressure. The Board additionally notes that the Veteran stated that he attached two empirical studies supporting this claim to his IHP; however, no such studies have been received by VA or associated with the claims file. Addressing the Veteran's contention, as an initial matter, the Board recognizes that the Veteran has been diagnosed with hypertension during the pendency of his claim, and thus satisfies the first element necessary for secondary service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). Nonetheless, the Board additionally finds that the August 2013 VA examination and opinion are adequate. The Board notes that in the recent case of Monzingo v. Shinseki, 26 Vet. App. 97 (2012), the United States Court of Appeals for Veterans Claims (Court) held that "[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file," and held that "examination reports are adequate when they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo, 26 Vet. App. at 105 (citing Acevdo v. Shinseki, 25 Vet. App. 286, 293 (2012)). In determining whether a medical examiner provided a reasoned medical explanation, "the medical report must be read as a whole" and a failure by the examiner to "explicitly lay out the examiner's journey from the facts to a conclusion" is not necessarily determinative. Id., at 106. In the present case, the examination report notes that the examiner interviewed the Veteran about his hypertension and medication, reviewed the claims file, and rendered the following opinion: Veteran reports he was diagnosed with diabetes mellitus type II and hypertension at the same time in 2004 by his outside primary care physician . . . . Veteran was placed on Lisinopril at that time. Veteran continued to take Lisinopril (Veteran not aware of dosage) until approximately 2010. Veteran has not been on any anti-hypertensive medication since 2010. Veteran is without current diagnosis of hypertension. If the Veteran's hypertension was affected by his diabetes mellitus type II the Veteran would have evidence of diabetic nephropathy. The Veteran is without a diagnosis or findings for diabetic nephropathy. To the extent that the examiner's opinion could have been expressed in more detail, to include specifically addressing the Veteran's Simvastin medication, the report must nevertheless be read as a whole. Id., (citing Acevedo, 25 Vet. App. 286, 294 (2012)). On review of the August 2013 report and opinion as a whole, it is clear that the examiner based her opinion on a review of the claims file, including the Veteran's VA and private treatment records showing his blood pressure readings and current and past medications. Nonetheless, the examiner found that based on the Veteran's blood pressure readings, the termination of his anti-hypertensive medication more than two years prior, and the lack of any evidence of diabetic nephropathy at any point in the Veteran's medical history, the Veteran does not have a current hypertension disability, that his previously diagnosed hypertension is less likely than not proximately due to or the result of the Veteran's service-connected diabetes mellitus type II, and that his hypertension was not affected by his diabetes mellitus type II. Accordingly, the Board finds that the August 2013 VA examination is adequate, as the VA examiner's opinion sufficiently informed the Board of her judgment on the question of whether the Veteran's hypertension was caused or aggravated by his service-connected diabetes mellitus type II, as well as provided an analysis discussing the essential rationale for her opinion. Monzingo, 26 Vet. App. at 105-106 (citing D'Aries v. Peake, 22 Vet. App. 97, 104 (2008)); see Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure the examination is adequate). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. §3.159, that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim, and therefore appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). III. Merits of the Claim The Veteran contends that he is entitled to service connection for hypertension, to include as secondary to his service-connected diabetes mellitus, type II. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, to establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2013); Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin 11 Vet. App. at 512. The Board has considered the application of direct service connection to the present claim; however, as the Veteran has specifically and consistently characterized his claim solely as one of entitlement to service connection for hypertension, secondary to service-connected diabetes mellitus, type II, the Board has analyzed the appeal accordingly. In reaching its decision, the Board has considered all lay and medical evidence of record. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The evidence of record reflects that the Veteran was diagnosed with hypertension contemporaneous to and during the pendency of the present claim. The Veteran filed the present claim in May 2005. Private treatment records reflect that in September 2004, the Veteran's past medical history was remarkable for "borderline elevated blood pressure," and in January 2005, he was diagnosed with "mild hypertension" and "[b]orderline type 2 diabetes mellitus." Additional private treatment records show a diagnosis of hypertension in May 2005, while VA treatment records reflect the Veteran was treated for hypertension from August 2005 through February 2011, with medical treatment for high blood pressure being terminated February 8, 2011. Next, the evidence of record shows that the Veteran has a service-connected disability. Specifically, the Veteran is service-connected for diabetes mellitus type II, of which he is claiming secondary service connection for hypertension. He is additionally service-connected for post traumatic stress disorder, peripheral neuropathy of the left and right upper and lower extremities, associated with diabetes mellitus type II, bilateral hearing loss, and tinnitus. Having determined that the Veteran has a current disability and a service-connected disability, the final question before the Board is whether the Veteran's hypertension disability is related to the service-connected diabetes mellitus type II. A relationship or medical nexus can be established by showing that the Veteran's hypertension was either caused or aggravated by his service-connected diabetes mellitus type II. In this case, there is conflicting evidence on the issue of nexus that must be weighed. In support of the claim there is a May 2005 statement from the Veteran's private physician, which states "[the Veteran] has hypertension which may be service related." This evidence is contradicted by three VA examination reports. In September 2005, the Veteran was given a VA examination in connection with his claims of entitlement to service connection for diabetes mellitus, hypertension, and peripheral neuropathy. In the report, the examiner explained that he interviewed the Veteran and reviewed the Veteran's claims file. The examiner noted that the Veteran reported he was diagnosed with hypertension two to three years before developing diabetes, but was not on medications for it at that time, and that he has a "significantly positive family history for high blood pressure." The examiner additionally rendered the following opinion: Hypertension predates his diabetes and is less likely than not caused by or related to diabetes as there is no level of renal dysfunction. There is also a strong family history of hypertension in his brother and his father making his hypertension most likely familial and multifactorial on the basis of poorly controlled sleep apnea. The Veteran was provided with another VA examination in April 2012 in connection with his claim of service connection for peripheral neuropathy, as secondary to his diabetes mellitus type II. The examiner noted that he reviewed the Veteran's claims file and medical records, and additionally found that the Veteran "does not have nephropathy per normal renal blood work and normal urinary microalbumin," measured in January 2012. In July 2013, the Board remanded the Veteran's claim of entitlement to service-connection for hypertension, as secondary to his diabetes mellitus type II, for further development. Specifically, the Board found that the September 2005 VA examination was inadequate inasmuch as it did not include an opinion and rationale as to whether the Veteran's hypertension was aggravated by his service-connected diabetes mellitus type II. The Board directed that the Veteran be provided a new VA examination and that the examiner specifically address whether it is at least as likely as not that any current hypertension was caused or aggravated by the Veteran's service-connected diabetes mellitus. The Veteran was given a VA examination in August 2013. As noted above, the examiner reviewed the claims file and conducted an in person examination. She additionally reviewed a blood pressure graph that the Veteran brought with him to the examination. The examiner noted that the Veteran reported being diagnosed with hypertension in 2004 and was prescribed medication for hypertension at that time, which he took until approximately 2010. The examiner additionally specifically found that the Veteran does not have a current diagnosis of hypertension, his treatment plan does not include taking continuous medication for hypertension or isolated systolic hypertension, and that he does not have a history of diastolic blood pressure elevation to predominantly 100 or more. The report also contains three blood pressure readings of the Veteran, each taken three days apart. Based on her review of the file and in person examination, the examiner found that the Veteran's hypertension is less likely than not proximately due to or the result of the Veteran's service-connected diabetes mellitus. In addition, the examiner rendered the following opinion and rationale: Veteran reports he was diagnosed with diabetes mellitus type II and hypertension at the same time in 2004 by his outside primary care physician . . . Veteran was placed on Lisinopril at that time. Veteran continued to take Lisinopril (Veteran not aware of dosage) until approximately 2010. Veteran has not been on any anti-hypertensive medication since 2010. Veteran is without current diagnosis of hypertension. If the Veteran's hypertension was affected by his diabetes mellitus type II the Veteran would have evidence of diabetic nephropathy. The Veteran is without a diagnosis or findings for diabetic nephropathy. As a clarifying point, the Board recognizes that VA treatment records reflect that the Veteran was last prescribed the anti-hypertensive medication Lisinopril in February 8, 2011, and that the Veteran stated in May 2013 that the VA discontinued his Lisinopril medication in March 2011. As noted above, the August 2013 examiner, in her opinion, reported that the Veteran continued to take Lisinopril until "approximately 2010" and further stated has not been on any such medication "since 2010." As the Veteran's Lisinopril medication was terminated approximately two to three months after the end of 2010, the Board finds that the examiner's characterization of the Veteran's medical treatment, using the term "approximately 2010," is sufficiently accurate for purposes of determining the weight assigned to this opinion. The Board finds the September 2005 and August 2013 VA opinions more probative than that expressed in the May 2005 private opinion. "[M]ost of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the September 2005 and August 2013 opinions contain analyses that are supported by the record and clearly articulate the rationale for concluding that the Veteran's hypertension is not caused or aggravated by his service-connected diabetes mellitus type II. Therefore, they are entitled to great weight. The favorable medical evidence is far less persuasive. The contrary medical opinion is expressed in speculative language with the use of the word "may." This lessens the probative value of the opinion. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (indicating that speculative medical opinions are not particularly probative). In contrast, the August 2013 opinion was expressed in unequivocal language and in the language of probability rather than possibility. Furthermore, the May 2005 private opinion includes no reasoning to support the conclusion, while the September 2005 and August 2013 conclusions are supported by extensive logical reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304. Specifically, the physician did not state how it is possible that active service caused hypertension, nor whether the Veteran's hypertension had any relation to his service-connected diabetes mellitus type II. For these reasons, the Board assigns considerably greater weight to the September 2005 and August 2013 opinions than to the May 2005 private opinion. The Board additionally notes that VA treatment records include an October 2010 notation that the Veteran showed "hypertension secondary to Depo Medrol 80 mg [intramuscular] injection and secondary to niacin which is not a true allergy but rather than adverse reaction." VA treatment records also show that the Veteran was prescribed niacin "for cholesterol," and that his intramuscular injections are related to his diagnosis and treatment of hypogonadism or other testicular hypofunction, for which he is not service-connected. Thus, the Board finds that this evidence additionally weighs against a finding that the Veteran's hypertension was caused or affected by his service-connected diabetes mellitus type II. As the negative VA opinions on the question of nexus carry the most probative weight of all of the opinions for consideration, the preponderance of the evidence weighs against a finding that the Veteran's hypertension disability was caused or aggravated by his service-connected diabetes mellitus type II. As such, service-connection for hypertension, as secondary to service-connected diabetes type II is not warranted on any basis. In reaching its conclusion, the Board had considered the applicability of the benefit of the doubt doctrine; however, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. at 55-57; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension, secondary to service-connected diabetes mellitus type II is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs