Citation Nr: 18151833 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-13 764 DATE: November 20, 2018 ORDER Entitlement to service connection for hypertension, as secondary to the service-connected diabetes mellitus, is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, there is an approximate balance of positive and negative evidence as to whether his hypertension is proximately due to, or aggravated by, his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for hypertension, as secondary to the service-connected diabetes mellitus, are met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from September 1969 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran was previously represented by Attorney David Anaise during the course of this appeal. See VA Form 21-22, Appointment of Individual as Claimant’s Representative dated March 17, 2016. In a December 2017 letter, after certification of the Veteran’s appeal to the Board in December 2016, Mr. Anaise attempted to withdraw his services as the Veteran’s representative. A copy of this letter was also sent to the Veteran. The decision to withdraw from representation after certification of an appeal is not a unilateral choice to be exercised at the discretion of the representative. Once an appeal has been certified to the Board, a representative may not withdraw without showing good cause through a written motion. 38 C.F.R. § 20.608. Here, the attorney submitted a withdrawal after certification of the appeal to the Board, and did not provide good cause reasons for doing so. Mr. Anaise has not made an appropriate motion to withdraw representation, as prescribed by 38 C.F.R. § 20.608, and the Veteran has not appointed a new representative. Thus, the attorney remains the appointed representative for the purposes of deciding this appeal. The most recent adjudication of this claim was in a supplemental statement of the case (SSOC) issued in October 2016. Additional evidence was subsequently added to the record. In an October 2018 statement, the Veteran waived his right to initial review of this evidence by the AOJ. 38 C.F.R. § 20.1304(c). The Veteran seeks service connection for hypertension on a secondary basis, which he believes is caused, or made worse, by his service-connected diabetes mellitus. He does not otherwise contend that his hypertension began in service, or is directly related to his military service, nor is this shown by the record to be the case. As he has limited his argument to principles of secondary service connection, the Board will proceed to consider this limited aspect of this appeal. Service connection may 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). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, there are conflicting medical opinions as to whether the Veteran’s hypertension is caused or aggravated by his service-connected diabetes mellitus. Positive medical evidence supporting his claim for service connection includes a statement from a private physician who, at the Veteran’s request, performed an independent review of his medical records and rendered an opinion. Following review of the claims file, the examiner concluded, with a reasonable degree of medical probability, that the Veteran’s hypertension is a sequela of his service-connected diabetes mellitus. In discussing the rationale of the opinion, he referenced specific medical records outlining the course and progression of the Veteran’s hypertension and cited to an online medical resource, noting that diabetes type II is a known medical risk factor for the development of hypertension. See medical opinion from W. Sniger, M.D., dated October 20, 2014. In January 2015, the Veteran submitted a second medical statement from a different private physician, who concluded that it is more likely than not that the Veteran’s hypertension has been aggravated by his service-connected diabetes. He noted that, although hypertension was diagnosed in 2009 and diabetes in 2010, the Veteran likely had diabetes years prior to development of hypertension. He explained that diabetes is well known to cause endothelial dysfunction and other vascular damage which results in hypertension and aggravation of hypertension. See medical opinion from B.W. Case, M.D., dated January 22, 2015. Both medical opinions establish the required cause-and-effect correlation between the diabetes mellitus and the development/progression of hypertension. Evidence against the claim includes an August 2013 VA hypertension examination report. The Veteran noted the onset of symptoms including elevated blood pressures in 1998 during periodic health and cardiology visits. He was started on medication in 2009 and stated the condition had worsened with an increased need for medication. The examiner confirmed the diagnosis hypertension without providing a specific opinion regarding the relationship between it and the diabetes. However, he noted that other than diabetic peripheral neuropathy and erectile dysfunction, the Veteran did not have any other recognized complications of diabetes mellitus. See August 2013 Diabetes Mellitus Disability Benefits Questionnaire. For further medical comment on this issue, the Board referred the claim for additional VA opinion. In a March 2016 opinion, a VA physician, reviewed both the claims file and the current literature and concluded that the Veteran’s hypertension is less likely as not caused by or proximately due to diabetes mellitus. She also concluded that there is no objective evidence that the Veteran’s hypertension is aggravated beyond its natural progression by diabetes. She noted that according to an on-line medical reference that essential hypertension progresses from occasional to established hypertension. After a long, invariable, asymptomatic period, persistent hypertension develops into complicated hypertension, which target organ damage to the aorta and small arteries, heart, kidneys, retina, and central nervous system is evident. The progression of essential hypertension begins with prehypertension in persons aged 10-30 years (by increased cardiac output) and then advances to early hypertension in persons aged 20-40 years (in which increased peripheral resistance is prominent), then to established hypertension in persons aged 30-50 years, and finally to complicated hypertension in persons aged 40-60 years. In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this particular case, the Board finds that the evidence is at least evenly balanced regarding as to whether the Veteran’s service-connected diabetes mellitus plays a role in his hypertension. As noted, the VA examiner maintains that the Veteran's hypertension is not related to diabetes mellitus, whereas the Veteran’s private physicians have concluded otherwise. In this regard, the Board notes that the professional qualifications of the VA and private medical providers are equal and that they both cited to medical literature to support their conclusions. Having weighed the evidence both in support of and against the claim, the Board finds that, at the very least, the medical opinions are in approximate balance with no sound basis for choosing one over the other. After carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that it is as likely as not that the Veteran’s hypertension is secondary to, or aggravated by, his diabetes mellitus. The Board resolves the benefit of the doubt in the Veteran's favor and finds that the requirements for secondary service connection for hypertension are met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant