Citation Nr: 1415826 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 09-45 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected bilateral foot disorders. 2. Entitlement to service connection for type 2 diabetes mellitus, to include as secondary to service-connected bilateral foot disorders. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran had active service from October 1974 to November 1977. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction currently resides in Montgomery, Alabama. In February 2011, the Veteran and his spouse testified during a Travel Board hearing before the undersigned. The hearing transcripts are of record. In September 2013, Board remanded the claim for additional evidentiary development. The Board notes that the Veteran submitted a statement in April 2014. The Veteran waived initial RO review of this evidence and thus a remand is not required for review of this statement, to the extent that it constitutes additional evidence as opposed to argument. 38 C.F.R. § 20.1304(c) (2013). This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's hypertension is not shown to have been present in service, or to have manifested within the first year following discharge from service, or to be otherwise related to service. 2. Hypertension is neither caused nor aggravated by the Veteran's service-connected bilateral foot disability. 3. The Veteran's type 2 diabetes mellitus is not shown to have been present in service, or to have manifested within the first year following discharge from service, or to be otherwise related to service. 4. Type 2 diabetes mellitus is neither caused nor aggravated by the Veteran's service-connected foot disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria to establish service connection for type 2 diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the Veteran, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The issue was most recently readjudicated in a March 2014 supplemental statement of the case. VA has fulfilled its duty to assist. The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate this claim, including requesting information from the Veteran regarding pertinent medical treatment he may have received and obtaining such records, as well as affording him a pertinent VA examination. Per the September 2013 remand, treatment records pertaining to the Veteran's May 1976 hospitalization were received and the Veteran was afforded a VA examination in November 2013. The examiner provided sufficient detail for the Board to make a decision and the report is deemed adequate with respect to this claim. Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. Pertinent Laws and Regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury will be service connected. Any increase in severity of a nonservice-connected disease or injury due to a service-connected disorder will be service-connected to the extent of the aggravation. 38 C.F.R. § 3.310. Certain chronic disabilities, including hypertension and diabetes mellitus, may be presumed to have been incurred in service where demonstrated to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). A layperson is competent to report on the onset and continuity of his current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding a material issue, the Veteran is given the benefit of the doubt. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends his hypertension and type 2 diabetes mellitus are secondary to his service-connected bilateral foot disability as well as the result of inadequate military boots and an improper military diet. See Veteran's March 2012 Statement. Entitlement to service connection for a bilateral foot disability was granted in April 1978, effective November 1977. In August 2001, the Veteran was afforded a general VA examination. The examiner diagnosed chronic foot pain, diabetes, and history of hypertension, and opined, "The veteran s foot condition is not related to his diabetes mellitus or hypertension as these conditions appeared many years later." Subsequent VA and private treatment records establish the Veteran has been diagnosed with hypertension and type 2 diabetes mellitus with ongoing treatment, but do not contain an opinion as to the etiology of these disorders. An April 2011 VA outpatient addendum indicated that the Veteran was requesting a signed statement that he was forced on a diet which caused him to develop diabetes. The physician noted that he "discussed with patient that this is unlikely and [he had] no records to base such a statement upon." A March 2012 private medical record notes the Veteran's reported history of being 130 pounds when he entered the service and at time of discharge was significantly heavier, related to the military diet and has developed the metabolic syndrome. The physician stated "I think it is as likely as not that the diabetes and hypertension are related to the military service in that way." Given the apparently conflicting opinions of the August 2001 VA examiner and the private physician, the fact that the August 2001 VA examiner did not provide an extensive rationale, and the fact that the private physician did not indicate the amount of weight that the Veteran gained during service, the amount of weight the Veteran gained after service, or address the fact that neither disease manifested until many years after service, the Board found that a VA examination was warranted as to the etiology of his hypertension and type 2 diabetes mellitus. The examination was conducted in November 2013 and the examiner reviewed the Veteran's medical history for hypertension and diabetes. The examiner explained the Veteran is diagnosed with essential hypertension, of which the origin is not completely understood. It is, however, "thought to have a strong genetic/family history origin, and is often associated with underlying risk factors, such as obesity, level of activity, and diet." The examiner also explained the Veteran is diagnosed with type 2 diabetes mellitus, which is associated with multiple risk factors, to include obesity, inactivity, diet, and genetic/family history. He then noted the Veteran has a documented family history of diabetes mellitus. As to hypertension, the examiner wrote that it was not worsened beyond its natural progression by service connected disabilities. As to diabetes, the examiner wrote, "There is no nexus of connection between the Veteran's SC foot disability and his more recent diagnosis of diabetes mellitus." In reaching these conclusions, the examiner considered the March 2012 private medical opinion, and explained that even if the contentions of weight gain during service were accepted, the Veteran did not meet the criteria for metabolic syndrome at separation. The examiner also considered the Veteran's lay statements and noted there was no notation of him being underweight in his service treatment records. Additionally, the examiner opined that given the Veteran's age in conjunction with the rigorous and activity oriented environment of service, it would not be unusual for a 20 pound weight gain to occur. He also noted the fact that the Veteran's blood pressure readings were normal and controlled by medication. The Board notes that in offering the above stated opinion as to secondary service connection, the examiner did not explicitly use the phrases "caused by" or "aggravated by." The Board interprets the examiner's opinion, when the examination report is read as a whole and in context of the evidence of record, to indicate a lack of both causation and aggravation of the hypertension and diabetes by the service connected foot disorders. See 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). The examiner's statement that hypertension was not worsened by the foot disorders implicitly included the conclusion that there was no causal relationship. The examiner's statement that there was "no nexus of connection" between the foot disorders and diabetes indicated a complete lack of relationship between the two, and was therefore broad enough to encompass the conclusion that there was no aggravation. The lack of the examiner's use of the precise terms "caused" and "aggravated" is not dispositive. In a memorandum decision, the Court held that "[i]t is not required that a medical opinion regarding secondary service connection be stated in the precise terms found in § 3.310 to be considered adequate." Kittrell v. Shinseki, No. 08-3001, 2010 WL 4671873 (Vet. App. Nov. 10, 2010) (mem. dec., Moorman, J.). The Court's decision was affirmed by the Federal Circuit and the Board finds its reasoning persuasive. See Kittrell v. Shinseki, No. 2011-7102, 464 Fed. Appx. 902, 2012 WL 884871 (Fed. Cir. Feb 17, 2012) (unpublished order). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). As the November 2013 VA explained the reasons for his conclusions, the Board finds that his opinion is entitled to substantial 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). Moreover, there is no contrary medical opinion on the question of secondary service connection in the evidence of record. In considering the Veteran's own statements as to the etiology of his hypertension and type 2 diabetes mellitus, he is competent and credible to testify about his observable symptoms. In addition, 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). In this case, the Veteran's testimony as to the etiology of his hypertension and diabetes is testimony as to internal medical processes which extend 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). To the extent that the Veteran is competent to opine on these complex medical questions, the Board finds the specific, reasoned conclusions of the November 2013 VA examiner to be of greater probative weight than the Veteran's lay assertions. Based on the above, the Board finds the most probative medical evidence of record establishes the Veteran's hypertension and type 2 diabetes mellitus are neither caused nor aggravated by his bilateral foot disability. Thus, the evidence weighs against a finding of entitlement to service connection for hypertension or type 2 diabetes mellitus secondary to a bilateral foot disability. The Board has also considered entitlement to service connection for hypertension and type 2 diabetes mellitus on a direct incurrence or presumptive basis, to the extent indicated. Establishing service connection 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 the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service treatment records show no complaints of, or treatment for, hypertension or type 2 diabetes mellitus. The evidence of record suggests the Veteran was first diagnosed with hypertension and diabetes in 1995. See August 2001 VA examination. This is about eighteen years post-separation from service. Accordingly, hypertension and type 2 diabetes mellitus were not shown until many years after service. The only medical opinion as to whether there was a relationship between hypertension or diabetes and service is that of the November 2013 VA examiner. After reviewing the claims file and considering the nature of the disorders, the date after discharge that they manifested, the Veteran's lay statements regarding his blood pressure, and relevant medical literature, the examiner concluded that it was not likely ("less likely than not") that either was related to service. As the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion on these issues is entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. As to the March 2012 private medical opinion, the Board assigns it a low probative value because the physician did not indicate the amount of weight the Veteran gained during service, the amount of weight the Veteran gained after service, or address the fact that there was no evidence of metabolic syndrome at separation or until many years after service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Moreover, to the extent the Veteran is competent to opine on these complex medical matters, his general lay statements are of less probative value than the specific, reasoned, conclusions of the November 2013 VA examiner. The weight of the evidence is thus against the claims on a direct incurrence basis as well. For the foregoing reasons, the preponderance of the evidence is against the claims for entitlement to service connection for hypertension and type 2 diabetes mellitus on any basis. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected bilateral foot disorders, is denied. Entitlement to service connection for type 2 diabetes mellitus, to include as secondary to service-connected bilateral foot disorders, is denied. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs