Citation Nr: 1804257	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO. 11-03 555	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II.

2. Entitlement to service connection for vision loss, to include as secondary to service-connected diabetes mellitus type II.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Cheng, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1966 to November 1969 and from February 1971 to July 1975.

These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2009 and March 2001 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In May 2017, the Board remanded the claims for further development. There was substantial compliance with the Board's remand directives to decide the claims on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999)


FINDINGS OF FACT

1. The Veteran's hypertension did not have its onset during active duty service, was not manifested within one year following service discharge, is not otherwise related to active duty service, and was not caused by or aggravated by diabetes mellitus type II.

2. The Veteran's myopia and presbyopia are by definition types of refractive error and are not disabilities for VA compensation purposes.

3. The Veteran did not incur vision loss (other than due to a refractive error) during activity duty service and any current vision loss (other than refractive error) is not otherwise related to active duty service, and was not caused by or aggravated by diabetes mellitus type II.



CONCLUSION OF LAW

1. The criteria for service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017).

2. The criteria for service connection for vision loss, to include as secondary to service-connected diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.310, 4.9 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Hypertension is a chronic disease listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See id.; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.307, 3.309(a). 

Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990); see also Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Hypertension

The Veteran contends that service connection for hypertension is warranted because it is secondary to his service-connected diabetes mellitus type II. Specifically, in a February 2011 substantive appeal (VA Form 9) the Veteran asserted that he did not have hypertension until the onset of diabetes mellitus type II.

VA medical records indicate that the Veteran was diagnosed and treated for hypertension as early as September 2003. It should be noted that Note (1) to 38 C.F.R. § 4.104, DC 7101 states hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For the purposes of 38 C.F.R. § 4.104, the term hypertension means that the diastolic blood pressure is predominately 90mm. or greater and isolated systolic hypertension means that the systolic blood pressure is predominately 160mm. or greater with a diastolic blood pressure of less than 90mm. 

The Veteran's service treatment records are silent for any diagnosis or treatment of hypertension or symptoms of high blood pressure. For example, a July 1974 dental patient medical history questionnaire from the Veteran's service treatment records indicates that the Veteran denied any treatment for high blood pressure or any blood disease. The questionnaire was updated in February 1975 and the Veteran did not change his responses. Furthermore, the reports from the Veteran's August 1969 separation examination, January 1971 entrance examination, March 1972 periodic examination, and June 1975 separation examination, reflect a normal clinical evaluation of the "heart" and "vascular system." The Veteran showed blood pressure measurements of 120/82 (systolic / diastolic); 98/68; 120/76; and 122/78 at each examination, respectfully. In the reports of medical history accompanying the examinations, the Veteran also denied that he ever had "palpitation or pounding heart" and "high or low blood pressure" and reported that he was in "good" health. The medical evidence proffered shows treatment of hypertension as early as September 2003, which is decades after the Veteran's July 1975 service separation. The medical evidence does not show that the Veteran's hypertension, manifested to a degree of 10 percent disabling or more within one year from his July 1975 separation from service and a presumption of service connection based on the chronicity of hypertension is not appropriate. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.307, 3.309(a). 

The Board has reviewed the Veteran's medical records for any indication that his hypertension could have been caused by or was a result of active duty service and finds that the preponderance of the evidence is against a relationship. The Veteran does not contend that a specific in-service injury or event that caused his hypertension nor does he offer a medical opinion from a qualified medical professional providing a nexus between his hypertension and service. 

The Veteran asserted that his hypertension was caused by or aggravated by his service-connected diabetes mellitus type II. The Veteran was provided a VA examination in September 2009. The Veteran reported that hypertension was discovered at the same examination as his diabetes. The examiner confirmed a diagnosis of hypertension, indicated it was a complication of diabetes, and provided the rationale that the Veteran's diabetes had been poorly controlled. Further, he provided the opinion that the Veteran's hypertension is at least as likely as not aggravated by his diabetes mellitus type II. The examiner stated that the Veteran had been placed some years earlier on cardiovascular/antihypertensives before the discovery of hypertension for treatment of his cardiac disease. He added that hypertension was first noted in September 2003 with a reading of 170/90 and a follow up in October 2003 read a blood pressure of 180/110 and the Veteran's medications were altered. The examiner explained that diabetes can cause macrovascular disease (atherosclerosis) and microvascular disease (retinopathy, nephropathy, and neuropathy). He stated that epidemiologic studies first showed an association between poor glycemic control and microvascular complications and cited to Barzilay et al. Predisposition to Hypertension: Risk Factor for Nephropathy and Hypertension in IDDM. Kidney Int 1992; 41; 723. The examiner also indicated that there is increased vascular stiffness in diabetics which is thought to be a consequence of protein glycation and, at a later stage, atheromatous disease and cited to Cruickshank et al. Aortic Pulse-Wave Velocity and its Relationship to Mortality in Diabetes and Glycose Intolerance; an Integrated Index of Vascular Function? Circulation 2002; 106: 2085. The examiner stated that this reduced elasticity can contribute to a rise in systolic pressure and is associated with mortality risk.

The VA examiner later changed his medical opinion in January 2010. He indicated that upon reviewing the evidence of record, he finds that the Veteran's hypertension and coronary artery disease were not aggravated by his diabetes mellitus. He explained that the Veteran was diagnosed with diabetes mellitus in 2002 and was diagnosed with hypertension in 2003 and with the coronary artery disease status-post myocardial infraction in 2000. This is contrary to the Veteran's report during the September 2009 VA examination that his hypertension was discovered at the same examination as his diabetes. The examiner added that the Veteran does not have end stage renal disease, which is the necessary condition with which to link the conditions of diabetes mellitus and hypertension and thus there is no nexus with which to link the two conditions. The examiner noted that the Veteran's hypertension had been well controlled since the onset of his diabetes mellitus, and thus his diabetes has not aggravated his hypertension. Further, the examiner stated that the Veteran's coronary artery disease predated the onset of his diabetes and thus was not caused by diabetes. He also noted that the Veteran's coronary artery disease had been stable and was not aggravated or exacerbated beyond the normal progression by the onset of his diabetes. 

Following a VA examination in September 2010, the VA examiner opined that the Veteran's hypertension was not caused by or aggravated by his service-connected diabetes mellitus. He explained that there is no nexus with which to link these conditions in the absence of end stage renal disease.

The Veteran has attempted to establish a nexus through his own lay assertions that his hypertension was caused or aggravated by his service-connected diabetes mellitus; however, the Veteran has not demonstrated competency to offer opinions as to the etiology of his hypertension. See Jandreau, 492 F.3d 1372, 1377 n.4; Woehlaert, 21 Vet. App. at 462. Hypertension requires specialized training for determinations as to diagnosis and causation, therefore, not susceptible to lay opinions on etiology. The Veteran is not competent to render such a nexus opinion or attempt to present lay assertions to establish a nexus between his hypertension and service-connected diabetes mellitus. 

The Board finds of more probative value the medical opinions of the VA examiners offered in September 2009, January 2010, and September 2010. The VA examination reports and opinions provide competent and probative evidence that weighs against the Veteran's claim because the VA examiner reviewed the claims file, interviewed the Veteran, performed an appropriate examination, and collectively provided a medical opinion supported by well-reasoned rationale. 

Absent competent, credible, and probative evidence of a nexus between the Veteran's service and his hypertension; the Board finds that his current hypertension was not incurred in service and it is not otherwise related to active service. The Board also finds that his current hypertension is not caused by or aggravated by the Veteran's service-connected diabetes mellitus type II as the Veteran has not offered competent medical evidence in support of his claim. See 38 U.S.C. § 5107(a) ("A claimant has the responsibility to present and support a claim for benefits."); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "whether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). Accordingly, service connection for hypertension is not warranted.

The preponderance of the evidence is against the claim of service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Vision Loss

The Veteran contends that service connection for vision loss is warranted because it is secondary to his service-connected diabetes mellitus type II. Specifically, in a February 2011 substantive appeal the Veteran asserted that he did not have vision loss until the onset of diabetes mellitus type II.

The Veteran was afforded a VA examination for his eyes in September 2009. The examiner indicated that the Veteran had photophobia of both eyes with an onset of 2 to 3 months prior to the examination and vision fluctuations which onset more than three months prior to the examination in both eyes. The Veteran reported that it coincides with blood sugar fluctuations. The examiner confirmed diagnosis of moderate nuclear cataracts in both eyes which mildly affected visual acuity at 20/30 but no effect on field of vision; photophobia of both eyes which was increased by the cataracts scattering of light and glare; and myopia and presbyopia of both eyes. A VA medical record from August 2004 reflects that the Veteran has diabetes mellitus without retinopathy; nuclear cataracts in both eyes, good external ocular health of both eyes, and refractive error. Subsequent VA medical records, including December 2005, January 2007, and April 2009 reflect essentially the same findings.

VA regulations provide that refractive error does not constitute a "disease" or injury" for in the meaning of applicable legislation for VA compensation purposes. See 38 C.F.R. § 3.303(c), 4.9 (2017); Terry v. Principi, 340 F.3d 1378 (Fed.Cir.2003). Therefore, service connection may not be allowed for refractive error of the eyes. See VAOPGCPREC 82-90 (July 18, 1990). Service connection could be granted for superimposed disease or injury.

Dorland's Medical Dictionary (31st edition) defines myopia as "an error of refraction in which rays of light entering the eye parallel to the optic axis are brought to a focus in front of the retina" and defines presbyopia as "hyperopia and impairment of vision due to advancing years or to old age." Thus, myopia and presbyopia are by definition types of refractive error. 

The Board has reviewed the record for any indication that the Veteran has an eye disability other than refractive error that was incurred in service or otherwise related to service and finds that the preponderance of the evidence is against such relationship. The preponderance of the evidence is also against a finding that a refractive error had been subject to any superimposed disease or injury in service. A review of the service treatment records indicates that clinical evaluations revealed normal "eyes-general;" "ophthalmoscopic;" "pupils;" and "ocular motility" following the August 1969 separation; January 1971 entrance; March 1972 periodic; and June 1975 separation examinations. Further, in the reports of medical history accompanying the examinations, the Veteran denied any "eye trouble." The examinations showed 20/20 vision in both eyes upon entry and separation from both periods of service. An August 2004 VA medical record also indicates that the Veteran reported that he did not have prior eye injury or surgery. Therefore, service connection may not be granted for the Veteran's vision problems due to refractive error, such as myopia and presbyopia.

The Board has also considered whether any eye disability other than refractive error was caused by or aggravated by his service-connected diabetes mellitus type II and finds that the preponderance of the evidence is against such relationship. The September 2009 VA examiner provided the Veteran an ocular examination and determined that there were no physical findings of abnormal lacrimal duct function; abnormal eyelids; chronic conjunctivitis; residuals of eye injury; lagophthalmos; symblepharon; ptosis; nystagmus; eyelash loss; or eyebrow loss. The examiner indicated a physical finding of abnormal accommodation of presbyopia of both eyes. As discussed above, presbyopia is a refractive error and therefore not a disability for VA compensation purposes. The examiner indicated that the Veteran's moderate nuclear cataracts of both eyes mildly affected visual acuity at 20/30 but did not have an effect on field of vision. He stated that any opinion as to whether cataracts are diabetic related versus normal age related changes would be mere speculation. It should also be noted that the VA examiner found no diabetic retinopathy. The September 2009 VA examiner for diabetes mellitus type II indicated that there was no diagnosis of visual impairment, kidney disease, or amputation in his report. In a VA opinion provided in September 2010, the examiner confirmed diagnostic impression of diabetes mellitus type II, hypertension, ischemic heart disease, ischemic cardiomyopathy, upper and lower extremity peripheral neuropathy, and erectile dysfunction based on the history, examination, medical records and test results. The September 2010 VA examiner specifically reported that the Veteran had no visual conditions, kidney disease, or amputations present. Further, he indicated that there are no conditions present which were worsened, increased or aggravated by the Veteran's diabetes mellitus, except for the peripheral nerve conditions and erectile dysfunction.

The Veteran has not offered credible, competent, and probative evidence of an eye disability which caused his vision loss, other than refractive error, that was caused by or otherwise related to service; to include caused by or aggravated by service-connected diabetes mellitus type II. The evidence, including service treatment records and post service VA medical records including examinations, weighs against the Veteran's claim. 

In summary, myopia and presbyopia are refractive errors which do not constitute a "disease" or "injury" for VA compensation purposes and have not been shown to have been subject to superimposed disease or injury in service; the Veteran has not shown that any eye condition other than a refractive error was incurred in or otherwise related to active duty service; to include caused by or aggravated by service-connected diabetes mellitus type II; therefore service connection for vision loss is not warranted. 

The preponderance of the evidence is against the claim of service connection for vision loss, to include as secondary to service-connected diabetes mellitus type II, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II, is denied.

Entitlement to service connection for vision loss, to include as secondary to service-connected diabetes mellitus type II, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs