Citation Nr: 1548049 Decision Date: 11/16/15 Archive Date: 11/25/15 DOCKET NO. 11-11 832A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hypertension, to include as due to herbicide exposure and as secondary to service-connected type II diabetes mellitus and coronary artery disease. 2. Entitlement to service connection for a prostate disorder, to include as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Krunic, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for a heart disorder. However, the RO granted service connection for coronary artery disease in a March 2011 rating decision. Therefore, the issue is no longer on appeal, and no further consideration is necessary. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The merits of the underlying claim for entitlement to service connection for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a February 2005 rating decision, the RO denied service connection for hypertension. The Veteran was notified of that decision and of his appellate rights, but he did not appeal that determination. There was also no evidence received within one year of that determination. 2. The evidence received since the February 2005 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. 3. The Veteran's prostate disorder did not manifest during active service and is not related to his military service or to his service-connected type II diabetes mellitus. CONCLUSIONS OF LAW 1. The February 2005 rating decision, which denied service connection for hypertension, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2015). 2. The evidence received subsequent to the February 2005 rating decision is new and material, and the claim for entitlement to service connection for hypertension is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. A prostate disorder was not incurred in active service and not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Hypertension In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In a February 2005 rating decision, the RO denied service connection for hypertension, to include as secondary to type II diabetes mellitus. The RO relied on a VA examiner's statement that there is an association between hypertension and diabetes only in cases where renal disease is diagnosed. The examiner noted that the Veteran was not diagnosed with any renal disease. The RO also found that the Veteran's hypertension did not manifest in service or to a compensable degree within one year of his separation from active service. The Veteran was notified of this decision, but he did not appeal it or submit new and material evidence within the one-year appeal period. Therefore, the February 2005 rating decision is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The evidence received since the February 2005 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156 (2015). The Veteran has asserted new theories of entitlement for service connection for hypertension. In particular, the Veteran has alleged that his hypertension is due to herbicide exposure. In the alternative, he has asserted that his hypertension is secondary to his service-connected coronary artery disease. See Veteran's May 2011 statement. In support of his claim, the Veteran submitted an excerpt from a National Academy of Sciences Prepublication draft indicating that there is limited or suggestive evidence of an association between herbicide exposure and hypertension. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence was not previously considered by the RO and relates to an unestablished fact necessary to substantiate the claim. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for hypertension is reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the claim can be addressed. II. Prostate Disorder A. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2014); 38 C.F.R. § 3.159(b) (2014); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notification letter in March 2008, prior to the initial decision on the claim. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In the letter, the RO notified the Veteran of the evidence necessary to substantiate the claim and of the division of responsibilities in obtaining such evidence. The letter also explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. The Board acknowledges the Veteran was not afforded a VA examination in connection with his claim for service connection for a prostate disorder. However, there are medical records showing a current diagnosis of a prostate disorder, and a VA medical opinion was obtained in December 2014 based on a review of the record. 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 Board finds that the VA medical opinion is adequate to decide the case because it is predicated on a review of the claims file, including the Veteran's lay statements. In addition, the opinion sufficiently addresses the central medical issue in this case to allow the Board to make a fully informed determination, and the opinion is supported by rationale. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. B. Law and Analysis The Veteran has contended that his prostate disorder is due to his service-connected type II diabetes mellitus. See January 2008 claim. 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 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of a 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, in this case, the Veteran's prostate disorder, specifically benign prostatic hypertrophy, is not listed as a chronic presumptive disability. In addition, a disability can be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Moreover, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-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. Allen, 7 Vet. App. at 448. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for a prostate disorder. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a prostate disorder. Moreover, he has not identified any disease, injury, or event therein to which his current diagnosis could be related. See Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease). The evidence of record indicates that the Veteran was diagnosed with benign prostatic hypertrophy many years after his separation from service. See e.g. October 2002 VA urology clinic treatment report. The Veteran has not claimed, and the evidence does not show, that benign prostatic hypertrophy manifested in service or for many years thereafter. In fact, the Veteran has claimed that his enlarged prostate began at the same time as his service-connected diabetes mellitus and was caused by that disorder. See Veteran's May 2011 statement. Therefore, the remaining question is whether the Veteran's benign prostatic hypertrophy is related to his service-connected type II diabetes mellitus. VA examinations were conducted in December 2004 and July 2008 in connection with the Veteran's claims for diabetes mellitus, but they did not identify his prostate disorder as a complication of his diabetes mellitus. A VA medical opinion was also obtained in December 2014. The examiner opined that it is less likely as not that the Veteran's benign prostatic hypertrophy is caused by or aggravated beyond its normal progression by his type II diabetes mellitus. In so doing, the examiner stated there is no credible medical evidence that suggests diabetes mellitus is a cause of benign prostatic hypertrophy or a condition that aggravates benign prostatic hypertrophy. The Board notes that there is medical opinion showing otherwise. The Board acknowledges that laypersons are sometimes competent to provide opinions regarding such medical matters as diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, while the Veteran is competent to describe his symptoms and history, he is not competent to relate his prostate disorder to his service-connected type II diabetes mellitus. The specific question of the etiology of this disorder is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377. As the Veteran is a layperson without the appropriate medical training and expertise, he is not competent to render a probative opinion on issue of nexus in this case. Nevertheless, even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the specific, reasoned opinion of the December 2014 VA examiner is of greater probative weight than the Veteran's more general lay assertions. The examiner reviewed and considered the evidence of record, including the Veteran's statements, and provided a medical opinion with a supporting rationale relying on medical training, knowledge, and expertise. Based on the foregoing, the Board concludes that the Veteran's prostate disorder is not related to his active service and is not caused by or aggravated by his service-connected type II diabetes mellitus. Accordingly, the preponderance of the evidence is against the Veteran's claim for service connection for a prostate disorder. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been submitted, the claim of entitlement to service connection for hypertension is reopened, and to this extent only, the appeal is granted. Entitlement to service connection for a prostate disorder, to include as secondary to service-connected type II diabetes mellitus, is denied. REMAND In pertinent part, the Veteran has asserted that his current hypertension could be related to Agent Orange exposure. The Veteran has submitted an excerpt from the National Academy of Sciences regarding herbicide exposure and certain enumerated diseases. He stated that the excerpt indicates that exposure to herbicides is a risk factor for developing hypertension. The Veteran served in the Republic of Vietnam during the Vietnam era; therefore, it is presumed that he was exposed to herbicide agents during his military service. See 38 C.F.R. § 3.307(a)(6)(iii) (2015). Although hypertension is not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that 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), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Although medical opinions have been obtained in this case, they do not address whether the Veteran's current hypertension may be directly related to his herbicide exposure in service. Therefore, the Board finds that an additional medical opinion is needed to address the nature and etiology of the Veteran's current hypertension. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for hypertension. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of his hypertension. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran's hypertension is causally or etiologically related to his military service, including herbicide exposure therein (notwithstanding the fact that it may not be a presumed association). The examiner should also opine as to whether it is at least as likely that the Veteran's hypertension was caused by or permanently aggravated by his service-connected diabetes mellitus or service-connected coronary artery disease. In rendering his or her opinion, the examiner should consider the National Academy of Sciences excerpt submitted by the Veteran indicating a limited or suggestive association between herbicide exposure and hypertension. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence, to include any evidence contained in VBMS and Virtual VA. If the benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs