Citation Nr: 1537408 Decision Date: 09/01/15 Archive Date: 09/10/15 DOCKET NO. 10-07 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to his service-connected diabetes mellitus and/or Agent Orange exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 through June 1969, as well as in the National Guard from March 1978 to March 1980 and from January 1981 to June 2003. This case comes before the Board of Veterans' Appeals (the Board) on appeal from the September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim of entitlement to service connection for hypertension. In March 2013, the Veteran testified before the undersigned. A copy of the transcript has been associated with the claims file. In September 2014, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. FINDING OF FACT The Veteran's current hypertension was not manifested during his active military service or for many years thereafter, is not shown to be causally or etiologically related to his active military service, to include Agent Orange exposure, and is not shown to be caused or permanently made worse by the service-connected diabetes mellitus. CONCLUSION OF LAW Service connection for hypertension, claimed as secondary to the service-connected diabetes mellitus and as secondary to Agent Orange exposure, is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 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. § 3.159. The VCAA applies to the instant claim. Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The secondary service connection duty-to-assist letter was not provided before the initial RO adjudication of the claim in September 2008. However, after the Veteran was provided the letter, the claim was then readjudicated in the August 2012 Supplemental Statement of the Case (SSOC) based on any additional evidence received in response to that additional notice. This is important to point out because if there was no VCAA notice provided prior to the initial adjudication of the claim, or for whatever reason the notice provided was inadequate or incomplete, this timing error may be effectively "cured" by providing any necessary notice and then going back and readjudicating the claim, including in a SOC or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of his claim. In other words, this timing error in the provision of the notice is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 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 post-service treatment records. In addition, the Veteran was provided with VA examinations in May 2007 and March 2015, both of which included reviews of the pertinent medical history and diagnoses and were supported by medical rationale. Thus, the Board finds that the evidence is adequate to make a determination on this claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In March 2013, the Veteran testified at a Board hearing. Neither the Veteran nor his representative have identified any prejudice in the conduct of the hearing, and the record reflects that the undersigned clarified the issue on appeal, elicited testimony on the elements necessary to substantiate the appeal, and sought to identify any further necessary development to substantiate the claim. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See 38 C.F.R. § 3.103(c) (2); see also Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In September 2014, the Board remanded the Veteran's claim to provide him with a VA examination and to obtain outstanding STRs. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for service connection is thus ready to be considered on the merits. II. Service Connection The Veteran seeks service connection for hypertension and argues that his current disability is related to his service-connected diabetes mellitus and/or his in-service exposure to herbicides (Agent Orange). Having carefully considered the claim in light of the record and the applicable law, the Board concludes that the preponderance of the evidence is against the claim and the appeal will be denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. §§ 101(21), (24) (West 2002 & Supp. 2013); 38 C.F.R. § 3.6(a) (2013). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. 38 U.S.C.A. §§ 101(21), (24); 38 C.F.R. § 3.6(a). The Veteran's periods of INACDUTRA are not relevant to this case because hypertension is a disease, not an injury, and thus service connection may not be granted for periods of INACDUTRA. See 38 C.F.R. § 3.309(a). To establish direct service connection, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for cardiovascular-renal disease, including hypertension, if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, the presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply to ACDUTRA or INACDUTRA service. Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the certain diseases shall be service-connected, if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2014); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. The Board notes that the term hypertension refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm. Hg systolic and from 90 mm. Hg diastolic. See Dorland's Illustrated Medical Dictionary 909 (31st ed. 2007). As noted above, the first element of direct service connection requires evidence of a current disability. Here, a current diagnosis has been established. On VA examination in March 2015, the Veteran had an average blood pressure reading of 146/82 and the VA examiner noted that the Veteran was taking continuous medication for his hypertension. Thus, the Veteran has satisfied the first element of service connection. As stated above, the second element of direct service connection requires evidence of in-service incurrence or aggravation of an injury or disease. Here, the Veteran contends that his hypertension was caused by exposure to herbicides in service. VA has conceded in-service exposure to herbicides for the Veteran as he served on active duty on land in the Republic of Vietnam during the Vietnam War. Although the Veteran was exposed to herbicide agents, hypertension is not one of the diseases listed as a disease associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). Consequently, service connection is not warranted for hypertension under the provisions of presumptive service connection pertaining to exposure to herbicide agents. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). As previously mentioned, the third element of direct service connection requires evidence of a nexus between the current disorder and the in-service disease or injury. There is no positive medical nexus evidence in the claims file. In March 2015, the Veteran was afforded a VA examination to determine whether his hypertension is etiologically related to his active service. The VA examiner reported that the Veteran began to have elevated blood pressure in 2001 or 2002 and was diagnosed with hypertension by Dr. T. in 2003. She added that the Veteran was taking continuous medication to treat his hypertension. The VA examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by an in-service disease or injury. She elaborated that the Veteran's hypertension was caused by increased sympathetic tone, renin angiotension aldosterone systems hyperactivity, blunting of the pressure natriuresis relationship, and elevated intracellular sodium and calcium levels. The VA examiner determined that Agent Orange exposure did not cause the Veteran's hypertension as the hypertension began years after his separation from the active duty in June 1969. Furthermore, the Veteran is not entitled to direct service connection for this claim based on continuity of symptomatology. VA treatment records dated in May 2006 document that the Veteran stated he had essential hypertension since 1985. Even accepting the Veteran's report on its face, hypertension occurred many years after his separation from the active service as the Veteran's active duty ended in June 1969. Therefore, presumptive service connection, and service connection based on continuity of symptomatology, is not warranted for this claim. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.307(a), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To the extent the Veteran claims his hypertension began during National Guard service, the presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 (West 2014) do not apply to active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) military service. Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010). His National Guard records, to include his retirement points statement, do not document that he had any active duty service during his National Guard service. Id. Therefore, direct service connection may not be granted based on continuity of symptomatology for the Veteran's National Guard Service or his active duty service. Id. For all of these reasons, service connection on a direct basis is not warranted for hypertension. The Veteran also seeks service connection for hypertension, as secondary to his already service-connected diabetes mellitus. As noted above, the first element of secondary service connection requires evidence of a current disability and the Veteran has satisfied this element. As stated above, the second element of secondary service connection requires evidence of a service-connected disability. Here, the Veteran is currently service-connected for diabetes mellitus. Thus, the Veteran has satisfied the second element of secondary service connection. As previously mentioned, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. In this regard, the record contains a positive nexus private medical opinion and two negative nexus VA medical opinions. In June 2007, the Veteran was afforded a VA examination to evaluate his claimed diabetes mellitus. The VA examiner stated the Veteran started having excessive thirst and urination associated with moderate weight loss in November 2006 and that the Veteran was subsequently diagnosed with diabetes mellitus. The Veteran indicated that he had been diagnosed with hypertension in 1998 and had been on medication to control his hypertension since that time. The VA examiner concluded that the Veteran's essential hypertension was not secondary to his diabetes mellitus. In June 2012, the Veteran submitted a letter from Dr. B., the Veteran's private physician, which stated the Veteran's hypertension was due to his type II diabetes. Dr. B. added the Veteran had been her patient for several years. Dr. B. did not provide any further rationale for this opinion or review the Veteran's claims file. In compliance with the Board's September 2014 remand directives, the Veteran was afforded a March 2015 VA examination to address whether the hypertension was caused or aggravated beyond its natural progression by the service-connected diabetes mellitus. The VA examiner opined that hypertension was less likely than not the result of the service-connected diabetes mellitus. She explained that the Veteran's hypertension was diagnosed in 2003 and diabetes mellitus was diagnosed in 2007. Since hypertension preceded the date of the diagnosis of diabetes mellitus, hypertension was not caused by the later diagnosed diabetes mellitus. Hypertension was fully developed at the time diabetes mellitus was diagnosed. The VA examiner added that there was no aggravation of the hypertension by the service-connected diabetes mellitus as the Veteran's hypertension had remained stable since his diagnosis of diabetes mellitus. The Board finds that the VA opinions outweigh the positive private opinion proffered by Dr. B. The March 2015 VA opinion, in particular, was based on a comprehensive review of the record and included an extensive discussion as to why the Veteran's hypertension was not caused or aggravated beyond its natural progression by the service-connected diabetes mellitus. The March 2015 VA examination report is further bolstered by the medical evidence of record that shows the Veteran's hypertension predated the onset of diabetes mellitus by years. Dr. B.'s opinion is conclusory and does not offer a rationale for her conclusion. Therefore, Dr. B.'s opinion is afforded little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran is competent, even as a layperson, to attest to factual matters of which he has first-hand knowledge, e.g., an injury during his active military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), and in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that lay evidence can be competent and sufficient to establish a diagnosis of a disorder when: (1) a layperson is competent to identify the medical disorder (noting that sometimes the layperson will be competent to identify the disorder where the disorder is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Id. Although laypersons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case (whether hypertension was caused or aggravated by service-connected diabetes mellitus or caused by exposure to herbicides) falls outside the realm of common knowledge of a layperson. See Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007) (laypersons not competent to diagnose cancer). As a layperson, it is not shown that he possesses the medical expertise to provide such an opinion. The most probative medical opinions of record addressing the claimed relationships are negative. The March 2015 VA examiner considered the Veteran's lay assertions and positive private medical opinion, but ultimately found that the Veteran's current hypertension was not related to his service-connected diabetes mellitus or exposure to herbicides. Thus, as previously stated, the medical evidence of record is only against the Veteran's claim. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus and to include as due to Agent Orange exposure, is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus and/or Agent Orange exposure, is denied. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs