Citation Nr: 1340427 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-39 971 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to diabetes mellitus, type II. 2. Entitlement to service connection for erectile dysfunction, to include as due to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from October 1967 to October 1971. This matter arises to the Board of Veterans' Appeals (Board) from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, that in pertinent part denied service connection for hypertension and for erectile dysfunction. In April 2012, the Board adjudicated one issue and then remanded the remaining two issues for development. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Hypertension did not begin during active service nor did hypertension manifest to a compensable degree within one-year of separation from active service. 2. Hypertension has not been caused or aggravated by a service-connected disability. 3. Erectile dysfunction is caused by medication taken for a service-connected disability. CONCLUSIONS OF LAW 1. Hypertension was not incurred in active military service, nor may hypertension be presumed to have been incurred in active military service, nor was hypertension caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). 2. The requirements for secondary service connection for erectile dysfunction are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board remanded the case for development in April 2012. The United States Court of Appeals for Veterans Claims (Court) held that when the remand orders of the Board are not complied with the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has complied with all remand orders of the Board. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter 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(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 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). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by a letter sent to the claimant in March 2007with regard to the claims adjudicated herein. The letter addressed all of the notice elements and was sent prior to the initial unfavorable decision that was issued by the RO in April 2008. VA's duty to assist in the development of the claims has also been met. The service treatment records (STRs) and all pertinent VA and private treatment records have been obtained and associated with the file. A VA medical opinion with respect to the issues on appeal was obtained in April 2012. See 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical opinions obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records in the claims file. The medical experts considered the pertinent evidence of record and the statements of the claimant and provided a rationale for the opinions offered. Accordingly, VA's duty to assist with respect to obtaining a VA examination and opinion has been met. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). 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); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, only a diagnosis offered by a medical professional is "competent" evidence of a diagnosis; however, when a condition may be identified by its unique and readily identifiable features and capable of lay observation, the lay diagnosis of the disorder is also competent. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). This is especially true where the lay diagnosis supports a later diagnosis offered by a medical professional. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The phrase "chronic disease" refers to those diseases listed under 38 U.S.C.A. § 1101 (3) and 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013) ("The clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). Hypertension is a chronic disease listed at 38 U.S.C.A. § 1101 (3); 38 C.F.R. § 3.309 (a) and must be accorded the benefits of presumptive service connection. Where a chronic disease under 38 C.F.R. § 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. There is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease [and active service] and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. The evidentiary requirements for service connection afforded combat Veterans under 38 U.S.C.A. § 1154(b) are relaxed, but, because the Veteran has not claimed that he was in combat, nor does his DD Form 214, Armed Forces Of The United States Report of Transfer Or Discharge, reflect participation in combat activity, he will not be afforded this consideration. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by, or, (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a non-service-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id at 448. The two claims for secondary service connection were received at the RO in January and June 2007. 38 C.F.R. § 3.310 was revised effective October 10, 2006. The revised version therefore applies to this case. The revised § 3.310(b) provides the following: Any increase in severity of a nonservice-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 nonservice-connected disease, will be service connected. 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 (38 C.F.R. part 4) 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. "Hypertension" means persistently high arterial blood pressure. Various criteria for what is considered elevated blood pressure have been suggested, and according to some medical authorities the threshold is a systolic pressure of 140 and a diastolic pressure of 90. Hypertension may have no known cause (essential or idiopathic h.) or be associated with other primary diseases (secondary h.). Dorland's Illustrated Medical Dictionary 801 (28th ed. 1994). The Veteran's STRs do not mention hypertension or complaint of erectile dysfunction. An October 1971 discharge examination report reflects that the Veteran's blood pressure reading was 122/70. Private examination reports dated in the 1990s contain blood pressure readings that are predominantly below 140/90, although in March 1991 the Veteran's blood pressure was 122/88 and in May 1999 his blood pressure was 130/100 and 132/100 on re-check. In April 2002, a sonogram revealed a normal-sized left ventricle. VA out-patient treatment reports dated from May 2003 reflect that the Veteran took medication for various health concerns, including Meniere's disease and high blood pressure, and followed a low-sodium diet; however, none of the reports contains a diagnosis of hypertension. In July 2003, his blood pressure reading was 114/77. VA out-patient treatment reports dated in April 2006 reflect that a notation of essential hypertension began appearing on the Veteran's current problem lists. A November 2006 report notes that essential hypertension had been treated since July 2004. The reports reflect that elevated blood-sugar levels also appeared in 2006. In January 2007, the Veteran claimed service connection for hypertension, secondary to diabetes. A June 2007 VA diabetes compensation examination report reflects that diabetes was detected in January 2006. The Veteran reported a 4-year history, or longer, of taking medication for high blood pressure. He also reported a 2-year history of erectile dysfunction. The examining physician questioned whether diabetes, as opposed to impaired glucose tolerance, was shown. The physician dissociated hypertension from diabetes, but offered no rationale. The physician dissociated erectile dysfunction from diabetes on the basis that it predated diabetes. The physician did attribute erectile dysfunction to the Veteran's long-term hypertension medications, his age, and to alcohol abuse. In June 2007, the Veteran claimed that erectile dysfunction was secondary to diabetes mellitus. A June 2008 VA out-patient treatment report notes that the dosage level of hypertension medications was increased. The Veteran's blood pressure reading was 150/91. A September 2008 VA report notes a blood pressure reading of 148/98. In April 2012, the Board resolved conflicting medical opinions addressing whether the Veteran has type II diabetes in favor of the Veteran and granted service connection for type II diabetes. The Board then remanded the claims for hypertension and erectile dysfunction for more development. April 2012 VA compensation examination reports contain all the information requested by the Board in its remand instruction. In April 2012, a VA examiner offered a diagnosis of hypertension and noted that hypertension first appeared in the VA out-patient treatment reports in July 2004, although a significantly high blood pressure reading was obtained in May 1999. The physician opined that in this case hypertension was not caused by or aggravated by diabetes mellitus or by active military service. The physician reasoned that hypertension first arose in 2004, more than 30 years after active service, and the Veteran's laboratory blood tests ruled-out any complication due to diabetes. Concerning the etiology of erectile dysfunction, in April 2012, a VA physician offered a diagnosis of erectile dysfunction, as no formal diagnosis of erectile dysfunction had previously been offered. The physician based this diagnosis on the Veteran's reported history of first noticing this condition around 6 or 7 years earlier. The physician dissociated erectile dysfunction from diabetes on the basis that it is "more likely" due to long-term thiazide diuretic use (a drug prescribed by VA for control of both the Veteran's Meniere's disease and also for hypertension). The physician noted that the Veteran's age and smoking history could be risk factors for erectile dysfunction. No further evidence relevant to the service connection claims has been obtained. The Board must address the competency, credibility, and probative value of all evidence, including lay evidence. 38 U.S.C.A. § 7104(d)(1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The above-mentioned medical opinions are persuasive, as they are based on accurate facts and are supported by a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). There is no competent medical evidence that tends to associate hypertension with active service or with a service-connected disability. The two medical opinions addressing the etiology of the Veteran's hypertension are both negative; that is, they persuasively argue against service-connection. Moreover, there is no evidence of hypertension in active service, no evidence of continuity of symptomatology since active service, and no evidence of a compensable hypertension within a year of discharge with which to grant service connection on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309; Walker, 708 F.3d, 1336-1339. The lay evidence of record is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); see also 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Veteran has not alleged that his hypertension arose in service or within a year of separation and his belief that his service-connected diabetes has caused or aggravated hypertension is controverted by the medical opinions. Thus, his lay opinion cannot be afforded any weight in the matter. After considering all the evidence of record, the Board finds that the preponderance of it is against the claim for service connection for hypertension. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App, at 53. Service connection for hypertension must therefore be denied. Turning to service connection for erectile dysfunction, the recently obtained medical nexus evidence is indeed favorable. As discussed above, the April 2012 VA examining physician has persuasively attributed erectile dysfunction to a drug prescribed by VA for Meniere's disease. The Veteran's claims files and Virtual VA reflect that service connection is in effect for Meniere's disease. Thus, secondary service connection is warranted. After considering all the evidence of record, the Board finds that the evidence favors the claim. Service connection for erectile dysfunction must therefore be granted. ORDER Service connection for hypertension is denied. Service connection for erectile dysfunction is granted. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs