Citation Nr: 1803039 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 13-27 795 ) 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 diabetes mellitus, type II. 2. Entitlement to an initial, compensable rating for retinopathy, right and left eyes. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to October 1970 and from June 1976 to November 1994. These matters come before the Board of Veterans' Appeals on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied service connection for hypertension, granted service connection for retinopathy of the left eye and assigned an initial, noncompensable rating for the left eye disability. The Veteran filed a substantive appeal. In an October 2013 rating decision, the RO granted service connection for retinopathy of the right eye, which was assigned a noncompensable rating and evaluated along with the Veteran's left eye retinopathy. The issue on appeal is characterized accordingly on the title page to reflect the single rating assigned for the bilateral eye disability. Although the claim for a TDIU was denied in an unappealed November 2011 rating decision, the TDIU claim is part and parcel of the claim for an increased rating, as the Veteran alleges he is unemployable due, in part, to his service-connected retinopathy. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, this issue is properly before the Board and has been included on the title page. On his September 2013 substantive appeal, the Veteran requested a hearing before the Board. However, in December 2014, the Veteran contacted the RO and withdrew his hearing request. A request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. 38 C.F.R. § 20.702(e) (2016). Accordingly, the Veteran's hearing request is deemed withdrawn and the Board will proceed with appellate review. The issues of entitlement to an increased rating for retinopathy and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Hypertension is not attributable to service, did not manifest within one year of separation from service, and is not etiologically related to or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. 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 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) [*5] (applying Scott to a duty to assist argument). Service Connection for Hypertension 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). To establish a right to compensation for a present disability, a Veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge 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, service connection for certain chronic diseases, such as cardiovascular-renal disease (including hypertension), may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 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 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). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran primarily contends that his hypertension was caused or aggravated by his service-connected diabetes mellitus. As an alternative argument, he claims that his hypertension is related to his military service. For VA compensation purposes, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Multiple blood pressure readings are required to confirm the diagnosis of hypertension with 2 or more readings on at least 3 different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. With this in mind, service treatment records fail to reveal any evidence of elevated blood pressure readings sufficiently high to require treatment, or to result in a diagnosis of hypertension prior to the Veteran's separation in October 1970 and November 1994. There is also no objective evidence that the Veteran was diagnosed as having hypertension within one year of his service discharge. In a January 2013 hypertension examination report, the VA examiner noted the onset of the Veteran's hypertension as 2010, with treatment for the disorder beginning in October 2010. In so doing, the examiner noted that the Veteran denied having hypertension during an April 2010 examination, at which time his blood pressure was found to be well controlled. The January 2013 VA examiner also opined, following review of the claims file and examination of the Veteran, that the Veteran's hypertension is less likely as not secondary to his diabetes mellitus. The examiner explained that hypertension in diabetic patients is "almost always" from end-organ involvement from diabetes, for example diabetic nephropathy. He further noted that diabetic nephropathy is an important contributing factor to the development of hypertension in diabetic patients. As the Veteran's renal function studies were normal in 2012, the examiner determined that the Veteran's diabetes has not interfered with his renal function, making it unlikely that his diabetes caused his hypertension. The examiner concluded that the Veteran's hypertension was most likely essential in nature and, therefore, not likely related to his service-connected diabetes. In July 2013, a second VA examiner reviewed the evidence of record and concluded that the Veteran's hypertension is less likely than not caused by, a result of, or aggravated by his military service. His review of the medical evidence revealed that the Veteran's diastolic blood pressure readings were predominately less than 100. The July 2013 examiner further commented that no complications have arisen with the Veteran's hypertension, that the disorder has been managed with medications on an outpatient basis, and that there have been no recurring hospitalizations or operations for the disorder. He concluded that the Veteran's "diabetes would not be responsible for an aggravation of the hypertension when it does not exist." Based on the above evidence, entitlement to service connection for hypertension must be denied. The preponderance of the evidence shows that the Veteran's hypertension did not have its onset in service or for decades thereafter. In this regard, the service treatment records are negative for clinical findings indicative of the disorder, and the first evidence of an actual hypertension diagnosis is not shown until 2010, approximately sixteen years after the Veteran's discharge from military service. Thus, the evidence does not support service connection for the disorder based on an in-service occurrence or on a presumptive basis. Furthermore, the probative evidence does not suggest that the Veteran's hypertension is otherwise related to his military service or to a service-connected disability. There is simply no medical opinion of record linking the disorder to service or to the Veteran's service-connected diabetes. In this regard, the July 2013 VA examiner concluded that the Veteran's hypertension is unrelated to his military service, and further opined, along with the January 2013 VA examiner, that the Veteran's hypertension is less likely as not caused and/or aggravated by his service-connected diabetes. The medical opinions of record are highly probative as they are based upon a review of the claims file, consider the course of the Veteran's hypertension and his lay statements, and are supported by an expressed rationale. There is no competent medical evidence of record that rebuts the medical opinions against the claim or otherwise diminishes their probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). As such, the evidence does not support the Veteran's claim for service connection on a direct or secondary basis. Essentially, the evidence does not provide any appropriate basis upon which to grant service connection for the Veteran's hypertension. In reaching this decision, the Board has also considered the Veteran's statements offered in support of his claim and finds him to be sincere in his belief that service connection for hypertension is warranted. However, as a lay person, he is not competent to diagnose a cardiovascular disorder or to provide an opinion linking the claimed disorder to service or a service-connected disability. In any event, the medical opinion against the claim is clearly more probative than the Veteran's lay opinion supporting the claim. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for hypertension is not warranted. ORDER Service connection for hypertension is denied. REMAND The Veteran seeks a compensable initial rating for his service-connected retinopathy of the right and left eyes. He most recently underwent a VA examination to assess the severity of this disability in January 2013. In a September 2017 written brief, the Veteran's representative essentially asserted that the Veteran's bilateral eye disability has worsened since that time and that the January 2013 examination is too remote with which to assess the current severity of the disability. Where a veteran asserts that a disability has worsened since his last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Given the assertion that the Veteran's disability has worsened, the Board finds a new examination is warranted to assess the present severity of his service-connected retinopathy. As noted above, the TDIU claim is part and parcel of the Veteran's increased rating claim, and thus is inextricably intertwined. Rice, 22 Vet. App. 447. Therefore, the remand of the eye disability claim necessitates remanding the TDIU claim. While on remand, the AOJ should obtain all outstanding medical records pertinent to the claims. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include assisting the Veteran with the development of the record as it relates to the claim for a TDIU. 2. Schedule the Veteran for an eye examination with an ophthalmologist or optometrist to determine the current severity of the Veteran's retinopathy, and its impact on his employability and daily activities. The electronic record, to include a copy of this Remand, must be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should also fully describe the functional effects of the Veteran's retinopathy on his ability to perform activities of daily living, to include the physical and/or mental acts required for gainful employment. The examiner should provide the rationale for all opinions provided. If the examiner is unable to provide the requested opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary to render an opinion. 3. After completion of the foregoing, readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs