Citation Nr: 1753875 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 08-39 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for hypertension to include as secondary to diabetes mellitus. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1962 through November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's testimony was received during a May 2009 RO hearing and a January 2012 Board video hearing. Transcripts of this testimony are associated with the record. In March 2012, the Board denied the Veteran's claims for service connection for diabetes mellitus and for hypertension. The Veteran subsequently appealed the Board's March 2012 decision to the Court of Appeals for Veterans Claims (CAVC). In an October 2012 order, CAVC vacated the Board's March 2012 decision denying the Veteran's claim of entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, and remanded the claim to the Board. In June 2013, the Board remanded the issue concerning the Veteran's diabetes mellitus and hypertension for further development. In September 2013, the Board remanded the matter once again for still additional development. In July 2015, however, the Board determined that the development action taken by the AOJ was inadequate and that still additional development was required. In September 2016, the Board granted the Veteran service connection for diabetes mellitus, type II, but the hypertension matter was once again remanded for further development. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to hypertension during his period of service or for many years thereafter. 2. The preponderance of the evidence is against a finding that the Veteran's hypertension is etiologically related to his period of service to include as secondary to diabetes mellitus. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a February 2007 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the duty to assist, the Veteran testified at his May 2009 RO hearing that physical examinations conducted in 1966 as part of the Veteran's employment with United Airlines revealed mild hypertension. Additionally, during a November 2015 VA examination, the Veteran stated that he believed that his hypertension began within a year from his separation from service in November 1966. In order to confirm this assertion, the September 2016 Board remand required the RO to acquire records from American Airlines. However, as noted in a December 2016 letter from the Veteran's representative, the Veteran never worked for American Airlines, but rather worked for United Airlines instead. See May 2009 DRO hearing transcript; January 2012 Board hearing transcript. The Veteran's representative subsequently requested the records from the correct entity, United Airlines. In response, United Airlines wrote back, stating that "United has no record of an employee with this name or social security number." See August 2017 non-medical evidence. As such, an August 2017 letter from the Veteran's representative stated that "it appears that remand instructions are complete" and requested VA to "please issue a decision without delay." See September 2017 correspondence. Since then, neither the Veteran nor his representative have raised any new 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 in a liberal manner 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 duty to assist argument). In light of the foregoing, VA's duty to assist has been satisfied. II. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, 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. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have been incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. Hypertension is a chronic disease. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, a disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. A disability which is aggravated by a service-connected disorder may be service connected, but compensation is only available for the degree to which that condition was made worse by the service-connected condition - only to the degree that the aggravation is shown. 38 C.F.R. § 3.310. In such a situation, VA laws require that the medical evidence must show a baseline level of severity of the nonservice-connected disease or injury, which is established by medical evidence created before the onset of aggravation. Id. Lay evidence is not competent evidence concerning complex medical questions requiring specialized training or expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by CAVC.) 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); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, 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 Board will first address the Veteran's claim for service connection on a direct basis prior to considering his claim on a secondary basis. Again, the Board notes that in order to support an award of service connection on direct basis there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the current disability. See Shedden, 381 F.3d at 1167. With respect to Shedden element one of a current disability, in May 2014 and November 2015 VA examinations, the VA examiners diagnosed the Veteran with hypertension. Additionally, November 2014, March 2015, August 2015, December 2015, March 2016, July 2016 and October 2016 private medical assessments also diagnosed essential hypertension. See December 2016 private medical records. As such, Shedden element one of a current disability has been met. Shedden element two requires that there be an in-service incurrence or aggravation of a disease or injury. With respect to incurrence of an in-service injury or service, the Veteran's service treatment records contain no contemporaneous diagnosis or treatment of hypertension during service. With respect to aggravation of a pre-existing injury or disease, the Veteran's service treatment records show no contemporaneous diagnosis or treatment for hypertension prior to or upon service entry, nor has the Veteran alleged that he had hypertension prior to service. Since there is no contemporaneous evidence in the claims file of hypertension prior to service, there is no aggravation of a pre-existing disease or injury. With respect to service connection presumption of an in-service incurrence or aggravation of a chronic disease, the Board has considered the Veteran's report of being diagnosed with hypertension shortly after service. However, the Veteran's claims file contains no contemporaneous evidence of hypertension having manifested to a compensable degree within a year of service. Thus, the Veteran is not entitled to presumptive service connection. Since the Veteran has not provided contemporaneous evidence that he had hypertension prior to service, upon service entry, during service, or within a year of service, Shedden element two of the incurrence or aggravation of an in-service injury or disease has not been met. With respect Shedden element three of a nexus between an in-service disease or injury and a current disability, in a November 2015 VA examination, the VA examiner opined that the Veteran's hypertension was less likely than not (less than 50% probability) incurred in or caused by an in-service event or illness. The November 2015 VA examiner explained that there was no medical documentation of hypertension or elevated systolic blood pressure in the Veteran's claims file until a 1999 note in the claims file indicated that the Veteran had "borderline hypertension." Therefore, the VA examiner concluded that the Veteran's hypertension was not diagnosed in service. As such, Shedden element three of a link between a current disability and an in-service injury or disease has not been met. The Board recognizes that a lay person can be considered competent to report what a medical professional has told him, to include a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board finds the Veteran's report that he was told during the course of examination in 1966 as part of his employment with United Airlines that he had mild hypertension, which is based on recollections of events several decades in the past, to simply be outweighed by the VA medical opinion above. As noted, the VA examiner considered the Veteran's report, but also relied on his documented medical history, to include a finding of only borderline hypertension in 1999. With respect to secondary service connection, as noted above, establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. As noted above, the Board notes that the Veteran was granted service connection for diabetes mellitus, type II, in September 2016, and the Board also concedes that the Veteran has a current hypertension disability. With respect to causation or aggravation, in the May 2014 VA examination, the VA examiner opined that the Veteran's hypertension was not caused or aggravated by his diabetes. The May 2014 VA examiner explained that medical literature does not support a direct causal relationship between diabetes and hypertension. Furthermore, the November 2015 VA examiner opined that the Veteran's hypertension was less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected diabetes mellitus. The November 2015 VA examiner explained that hypertension is a distinct and separate condition from diabetes and that there has been no scientific or medical research linking herbicide exposure to hypertension. Additionally, the November 2015 VA examiner stated that hypertension is not caused by diabetes unless its onset is related to diabetic nephropathy. With respect to nephropathy, the VA examiner noted that the Veteran had no evidence of any nephropathy at the time of the examination, nor at the time of his hypertension and diabetes mellitus diagnosis. Since there is no medical evidence showing that the Veteran's service-connected diabetes mellitus was caused or aggravated his current hypertension disability, the Veteran's service connection claim for hypertension as secondary to diabetes mellitus is denied. ORDER Entitlement to service connection for hypertension to include as secondary to diabetes mellitus is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs