Citation Nr: 1752475 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-10 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for a heart disorder, to include as due to herbicide exposure and as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and J.A. ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from December 1966 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript is of record. In April 2016, the Board remanded the case for further development. The case has since been returned to the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. The issue of entitlement to service connection for a heart disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's current hypertension did not manifest in service or within one year thereafter and is not otherwise related to his military service or his service-connected type II diabetes mellitus. CONCLUSION OF LAW Hypertension was not incurred in active service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C. §§1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). For the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As hypertension is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, including hypertension, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. In considering the evidence of record under the laws and regulation as set forth above, the Board concludes the Veteran is not entitled to service connection for hypertension. As an initial matter, in this decision, all blood pressure measurements are noted in units of pressure in millimeters of mercury (mmHg). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. In addition, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2017). The Veteran's service treatment records are negative for any complaints, treatment, and diagnosis of hypertension. In fact, his blood pressure was recorded as 112/70 at his November 1970 separation examination, and he denied having a history of high blood pressure at that time. There is also no medical evidence showing that the Veteran had hypertension manifest to a compensable degree within one year of his separation from service. Instead, the medical evidence documents him as first being diagnosed many decades thereafter. Although the Veteran has asserted that he had elevated blood pressure in service when he was hospitalized for hepatitis in service, medical records from that treatment do not show such a finding. Likewise, there are no records to indicate he was diagnosed with hypertension within one year following service. Conversely, the Veteran told the May 2017 VA examiner that he was first told of his blood pressure problems in 2001. Moreover, during the February 2016 hearing, the Veteran testified that he was first diagnosed in the 1980s. In addition to the lack of evidence showing that hypertension manifested during active service or within proximity thereto, the weight of the evidence of record does not link the Veteran's current disorder to his military service. In this regard, the May 2017 VA examiner reviewed the Veteran's medical history and opined his hypertension was not caused by, incurred in, or aggravated by an in-service injury, event, or illness. In so doing, the examiner observed that there was no diagnosis of the disorder in service and that the available records show that he was not diagnosed until approximately 30 years following service. While there are many records in the Veteran's claims file that reference his hypertension, there is no medical opinion relating the disorder hypertension to his military service. See, e.g. May 2008 through April 2010 Bay Area Heart Center records, Bay Pines VAMC treatment records, and treatment records from a private physician. Therefore, the preponderance of the evidence weighs against a finding that the Veteran's current hypertension manifested in service or within one year thereafter or is otherwise related thereto. As to the Veteran's claim that his hypertension is related to his service-connected type II diabetes mellitus, the Board finds the most probative evidence of record does not support this contention. Although the Veteran has a current diagnosis of hypertension and is service-connected for type II diabetes mellitus, the more probative evidence has not established a relationship between these disorders. Indeed, there is no medical opinion showing that the Veteran's current hypertension is caused or aggravated by his service-connected type II diabetes mellitus. Rather, the October 2009 VA examiner reviewed the Veteran's medical history, including the dates of diagnosis for each disorder, and observed that his diabetes mellitus was controlled by medications. The examiner stated the Veteran's hypertension had its onset prior to his diabetes mellitus, that there was no renal disease, and that the hypertension was not worsened or increased by the Veteran's service-connected diabetes mellitus. The May 2017 VA examiner also reviewed the Veteran's medical history and noted his report that he was diagnosed with type II diabetes mellitus and hypertension around the same time in 2001. After an evaluation and review of the Veteran's claims file, the examiner opined the Veteran's hypertension was not caused by or aggravated by his service-connected diabetes mellitus. In so doing, he stated that peer-reviewed medical literature indicates that type II diabetes mellitus is not a cause of hypertension, nor does it cause aggravation of the disorder. The Board acknowledges the Veteran's statements that his hypertension is secondary to his service-connected type II diabetes mellitus. However, the Veteran is not competent to provide a nexus opinion regarding the nature and etiology of his hypertension. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the diagnosis and etiology of his hypertension, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The question of etiology goes beyond a simple and immediately observable cause-and-effect relationship, particularly in light of the delayed onset of the disorder. Moreover, even assuming the Veteran's lay assertions regarding etiology are competent, the Board nevertheless finds the VA medical opinions to be more probative, as they are based on a review of the record, an examination, and the examiners' medical expertise, training, and knowledge. The examiners also supported their conclusions with rationale that considered medical literature. Based on the foregoing the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for hypertension. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for hypertension is not warranted. ORDER Service connection for a hypertension is denied. REMAND The Veteran was most recently afforded a VA examination in connection with his claim for service connection for a heart disorder. The examiner indicated that it was unclear as to whether the Veteran had a cardiomyopathy, but noted that there was no nexus to service or to his service-connected diabetes mellitus if he did have such a disorder. However, he did not address whether any additional testing would determine whether he has such a diagnosis. Nor did he address whether the disorder was related to herbicide exposure in service. See 38 C.F.R. §§ 3.303(d), 3.309(e); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); 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). Therefore, the Board finds that an additional VA examination and medical opinion are needed to decide the claim. 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 healthcare providers who have provided treatment for his claimed heart disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims files. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any heart disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. If additional testing is needed to determine whether the Veteran has cardiomyopathy, such testing should be performed or the examiner should explain why it cannot be done. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note the Veteran is competent to attest to factual 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 identify all current heart disorders and specifically indicate whether the Veteran has cardiomyopathy or a form of ischemic heart disease. For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to his military service, including herbicide exposure therein (notwithstanding the fact that such an association may not be presumed under the law). The examiner should also opine as to whether it is at least as likely as not the disorder is either caused by or aggravated by the Veteran's service-connected type II diabetes mellitus. (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 conclusion is so evenly divided that it is as medically sound to find in favor of 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 is viewed in relation to its history", copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing the above actions, the AOJ should conduct any other development as may be indicated 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. If the benefits sought are not granted, the Veteran and his representative 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 of Veterans' Appeals 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