Citation Nr: 1700491 Decision Date: 01/09/17 Archive Date: 01/18/17 DOCKET NO. 10-05 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active service from January 1969 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. Jurisdiction of this matter is with the RO in Montgomery, Alabama. The issue was remanded in November 2014 and May 2016 for further development. FINDINGS OF FACT 1. Hypertension was not first manifested on active duty service or within the first post-service year; the preponderance of the evidence is against finding that hypertension is related to active service. 2. Hypertension is not due to or aggravated by the service-connected diabetes mellitus. CONCLUSION OF LAW Hypertension was not incurred in or aggravated by service, may not be presumed to have been so incurred or aggravated and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016). Prior to the initial adjudication of the claim in the June 2008 rating decision, the Veteran was provided notice with the VCAA in January 2008. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. He also received notice pertaining to the disability rating and effective date elements of his claim with subsequent re-adjudication of his claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Concerning the duty to assist, the Veteran was afforded VA examinations in December 2013, January 2015, and May 2016. The examination and opinion were thorough in nature and adequate for the purposes of deciding this claim. The report reflects that the examiner reviewed his past medical history, recorded the Veteran's current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis and opinion consistent with the evidence of record, supported by rationale. Cumulatively, the VA examinations and subsequent development substantially complied with the Board's prior November 2014 and May 2016 remands. The RO/AMC accomplished all tasks assigned by the Board in accordance with the remand instructions, which included to obtain the Veteran's VA and non-VA treatment records; and to afford a VA examination to determine the nature and etiology of the hypertension. In light of the above, the Veteran has had a meaningful opportunity to participate effectively in the processing of his claim, and no prejudicial error has been committed in discharging VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment (STRs) and personnel records (SPRs), VA outpatient treatment reports, VA examinations, private treatment records, Social Security Administration (SSA) records, and statements from the Veteran and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. There is no further assistance that would substantiate the claim for service connection for hypertension analyzed in the decision below. II. Service Connection In order to obtain service connection under 38 U.S.C.A. §§ 1110, 1131 (West 2014) and 38 C.F.R. § 3.303 (a) (2016), a Veteran must satisfy a three element test: (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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). In the case of any veteran who served for ninety (90) days or more during a period of war-a chronic disease becoming manifest to a degree of ten (10) percent of more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. 38 U.S.C.A. § 1112 (a)(1) (West 2014). Finally, in order to prevail on the theory of secondary service connection, there must be evidence of a current disability; evidence of a service-connected disability; and medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. In November 2007, the Veteran submitted a claim for service connection for "diabetic hypertension." The Veteran does not contend and the evidence does not suggest that his hypertension arose in or is related to service. Thus, service connection on a direct basis is not warranted. Rather, the Veteran contends that service connection for his hypertension is warranted as secondary to his current service-connected diabetes mellitus. His service records, namely, the September 1968 pre-induction and October 1970 a separation examination reflects no diagnosis of hypertension. His systolic pressure was 120/70 upon separation. The Veteran submitted a January 2010 statement from his private physician, C.C.R., M.D., in which Dr. R opined that it was as likely as not that the Veteran's hypertension was caused or aggravated by service. Private treatment records show an assessment of controlled hypertension. VA outpatient treatment records show an ongoing diagnosis of hypertension. Blood pressure readings in March 2010 were 132/72, 145/65 in May 2011, 160/75 in June 2012 and 150/66 in November 2013. In an April 2007 VA diabetic examination, the examiner noted that hypertension was diagnosed in 2006 and stated that "[a]lthough both diseases were diagnosed in 2006 there [was] no evidence of renal pathology. Therefore, he most likely has essential HTN." He further stated that "poorly controlled diabetes adversely affects the blood vessels leading to hypertension." The Veteran underwent a VA examination in December 2013. The examiner reviewed the claims file. The examiner noted that hypertension was diagnosed in 2006. She also stated that: "[a]lthough diabetes can have an adverse [a]ffect on hypertension that [was] not the case with this Veteran. This Veteran was diagnosed with hypertension around the same time as he was diagnosed with diabetes. As stated in the 2006 C&P, there [was] no evidence of renal pathology. Therefore, he most likely has essential hypertension. Currently, his urinary microalbumin [was] < 1.2 (in the normal range) and his eGFR [was] also in the normal range, indicating that his diabetes was not caused or aggravated by his hypertension." The subsequent January 2015 VA examination report concluded, "[t]he condition claimed [was] less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition." The rationale was premised on the fact that the hypertension was not present during service. It was diagnosed at the same time of his diabetes and his renal function was normal and therefore has not aggravated his hypertension. The Veteran underwent another VA examination in May 2016 by the same examiner who conducted the December 2013 and January 2015 VA examinations. The examiner stated that his hypertension was not incurred in or caused by the claimed in-service injury, event or illness. The examiner's rationale was premised on the fact that the Veteran was diagnosed with hypertension at age 58, many years after service. And that, according to the Mayo Clinic, there was no identifiable cause for most adults diagnosed with hypertension. The risk factors included increasing age, particularly after age 45, male sex, family history, and being overweight or obese. The examiner further stated that the Veteran's BMI was over 35, classifying him as obese. Although the Veteran was exposed to herbicides many years ago, it was only limited or suggestive evidence of an association between herbicide exposure and subsequent development of hypertension. And that, there was no generally accepted causative relationship between herbicide exposure and hypertension. In contrast to the known causative role of advancing age, male sex, being overweight and especially obese. A review of of the SSA records reflects an award of disability benefits based on a primary diagnosis of posttraumatic stress disorder (PTSD), and a secondary diagnosis of degenerative joint disease (DJD) of the right shoulder. The records are not pertinent to the instant claim. Finally, the Board acknowledges the March 2016 arguments of the Veteran's representative, which contended that the January 2015 VA examination report was inadequate because it failed to discuss a January 2010 opinion from the Veteran's private physician stating that his hypertension was related to service. The Board acknowledges that the examination report did not discuss the January 2010 opinion; however, the November 2014 Board remand specifically noted that the January 2010 opinion was inadequate because it failed to provide any rationale or basis to support the opinion. On consideration, the Board can divine no discussion that the January 2015 VA examiner could have provided with respect to the January 2010 opinion that was not reflected in the overall rationale provided in the report, given that no rationale or basis for the January 2010 opinion was provided for the examiner to reconcile with the opinion provided. Service connection for hypertension as secondary to diabetes mellitus must also be denied. Again, the examiner provided the reasons for her conclusions, which are supported by the record. The examiner's opinion with regard to the question of aggravation of hypertension by diabetes notes that the Veteran's diabetes has not caused any renal or vascular disease. Hypertension associated with diabetes is caused by renal disease or vascular disease, and objective testing has repeatedly demonstrated that no such kidney or vascular dysfunction is present here. Therefore, the Board finds that the cumulative VA opinions are highly probative on the issue at hand. The VA examination reports in April 2007 and December 2013 failed to address the theory of entitlement to service connection for hypertension on the basis of whether it was incurred in or is otherwise related to service. While the private physician provided a favorable nexus between the Veteran's hypertension and service, that opinion lacks specificity or rationale to support a decision on the merits. In April 2007 and in December 2013, a VA examination and opinion was obtained addressing the theory of service connection for hypertension, claimed as secondary to service-connected diabetes mellitus. However, no opinion was obtained that addressed the theory of direct service connection. Therefore, the issue was remanded again in May 2016 to obtain an opinion. The same VA examiner rendered all three opinions to various aspects of the Veteran's claim so cumulatively the VA examinations are significantly more probative than the January 2010 private opinion, which provided no rationale. The Board has considered the Veteran's statements regarding the etiology of his hypertension. A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran has not asserted, nor has the evidence shown, that he is qualified and/or competent to give a medical opinion regarding the etiology of his hypertension. In that regard, the Veteran has previously asserted unsuccessfully that his hypertension was related to other sources, including due to Agent Orange. The Board is not categorically dismissing the Veteran's lay statements. Rather, the Board finds the statements have less probative value than the VA examiner who has medical experience and training and who relied on sound medical principles in the opinion and reasoning. The VA examiner also based the opinion upon review of the claims file. Finally, the Board observes that service connection may be awarded on presumptive basis for certain disabilities such as hypertension that become manifested within a proscribed period following active military service. 38 C.F.R. §§ 3.307, 3.309. In this case, however, the Veteran's hypertension was not initially manifested within a year following service. Rather, the first evidence of a diagnosis is around the same time period as diabetes in 2006, nearly 30 years after separation from service. Based on the above, the Board finds that the preponderance of the evidence is against the claim. Therefore, entitlement to service connection for a hypertension disability must be denied. There is no reasonable doubt to be resolved. See 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension, to include as secondary to service-connected diabetes mellitus is denied. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs