Citation Nr: 1807786 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-24 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities. REPRESENTATION The Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1967 to November 1970. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the Legacy Content Management (formerly Virtual VA) electronic file. This issue was previously before the Board in February 2015. The Board remanded it for additional development. In November 2015 the Board denied this claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which remanded the matter the Board for action consistent with the terms of the Joint Motion for Remand (JMR) submitted by the parties. In its August 2017 remand, the Board directed that there be a new examination with addenda opinions. The matter is once again before the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) (formerly Virtual VA) electronic claims files. FINDINGS OF FACT 1. The objective evidence shows that the Veteran's hypertension was diagnosed in 1996 and his diabetes was diagnosed in 1999 and, the Veteran's hypertension is not show to be due to or aggravated by his diabetes mellitus, type II. 2. The objective evidence does not provide clinical findings that renal insufficiency caused or aggravated the Veteran's hypertension. Hypertension is shown to be well controlled on medication. 3. The Veteran's hypertension did not manifest to compensable degree within one year following the Veteran's service. It is not shown to have been present in service or due to in-service occurrence or event. CONCLUSION OF LAW The criteria for service connection for hypertension, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. In addition, the Board is satisfied that VA has substantially complied with the directives of the Board's previous remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was afforded a Compensation and Pension examination in October 2017, which produced findings pertinent to deciding the claim for entitlement to service connection. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination adequate for its purpose and 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) (applying Scott to duty to assist argument). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Moreover, service connection of a nonservice-connected disease or injury will be established if an increase in severity of the nonservice-connected disability is shown to be proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). The evidence must show (1) a current disability exists and (2) the current disability was the (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Certain chronic diseases, including hypertension, may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period of time is usually one year. 38 C.F.R. § 3.307 (a)(3). 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. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The Veteran's Assertions The Veteran contends in his May 2014 Board testimony that, although the record may indicate that his diabetes was diagnosed in 1999, it in fact manifested before it was diagnosed. Specifically, he contends that excessive thirst, cloudy urine and urine with a distinctive odor were symptoms of diabetes, which he exhibited before he was diagnosed. The Veteran asserts that his diabetes caused his hypertension and, therefore, it is service-connected as secondary to his service-connected diabetes mellitus, type II. The Veteran further asserts that his renal insufficiency aggravated his hypertension beyond its natural progression.. Hypertension, Diabetes and Renal Insufficiency The Veteran's service treatment records (STRs) indicate entries of "NO" in both his August 1967 enlistment examination and his October 1970 separation examination for evaluation categories such as shortness of breath, pain or pressure in the chest, dizziness or fainting spells, palpitation or pounding heart, and frequent or severe headache, or any such category which might be related to hypertension. His blood pressure at the enlistment examination was recorded at 122/86 with a pulse at 72. In his October 1970 separation examination, the Veteran's vascular system was checked as "NORMAL" and his blood pressure was recorded at 122/86 with a pulse at 72. In yearly private treatment urological examinations, Dr. B.M. noted that the Veteran had had a negative renal ultrasound in September 2004. He further noted that the application of "shock waves" had not broken up the stones and that between 1999 and March 2003, the Veteran had benefited from ureteroscopies, which had cleaned out much stone material. February 2005 X-rays revealed numerous non-obstructing right renal stones. The Veteran was assessed with a kidney calculus (stone). In January 2006, Dr. B.M. characterized the Veteran's condition as recurring kidney stones. He again identified a stone in January 2007 and offered the Veteran the option of open surgery to remove stones, which the Veteran declined. Between April 2005 and April 2007, the Veteran remained under the care of his private treatment physician, Dr. G. K., who generally treated and monitored the Veteran's numerous conditions, to include hypertension and diabetes mellitus, type II. At various times, the Veteran was referred to other physicians with various specializations. In April 2005, the Veteran's private treatment physician, Dr. R.R.C. noted the Veteran's history of renal calculi (stones). In May 2005, Dr. G. K., in recording the Veteran's blood sugar, noted that his renal function was good. However, between January and December 2006, Dr. G.K. identified kidney stones and treated the Veteran for a kidney infection. In April 2006, the Veteran's assessment list in his progress notes at Fort Worth VA included nephrolithiasis (kidney stones). In June 2007, the Veteran underwent a VA examination for diabetes, in which the VA examiner noted that, in August of 1999, Dr. G.K. had diagnosed the Veteran's diabetes based on the results of a routine screening lab result. Between 2006 and 2012, the Veteran's progress notes at Fort Worth and Dallas VA for his various conditions noted the Veteran's essential hypertension, its continued monitoring and management and the Veteran's improved blood pressure. During November 2010 heart examinations at Dallas VA, the Veteran's "renal insufficiency" was noted as stable, but also that it be monitored with adjustments to medications. In May 2015, the Veteran underwent an in-person VA examination for hypertension, in which the Veteran reported he was diagnosed with hypertension in 1996. The May 2015 VA examiner, in noting diabetes mellitus as a related condition, further noted that had been diagnosed in 1999. The May 2015 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's hypertension is caused or aggravated by service-connected disorders including his recently service-connected renal disorder and/or diabetes. She explained that, according to the available medical records, the Veteran's diagnosis of essential hypertension was recorded in 1996. She added that the Veteran was started on medication; he was diagnosed and treated for diabetes mellitus in 1999, three years after his diagnosis and treatment for essential hypertension; and according to clinic reports and lab reports his blood pressure and his diabetes have been under fairly good control. The May 2015 VA examiner further stated that the Veteran was diagnosed with uric acid nephrolithiasis and renal cyst (hyperdense renal cyst) in 2014, but his condition does not need any intervention as the stones are non-obstructing and the cyst will be followed annually. She concluded that the cyst and renal stones are not related to hypertension or to diabetes. She explained that the cause of hypertension is not fully understood and could be due to numerous genetic and environmental factors, as well obesity, which have multiple compounding effects on cardiovascular and renal structure and function. The May 2015 VA examiner stated there is no objective evidence to suggest that Veteran had diabetes mellitus, type II long before his diagnosis of hypertension, nor is there evidence that his hypertension has been aggravated beyond its natural progression. January 2016 to September 2017 progress notes at Bryan VA indicate that the Veteran's hypertension continued to be treated, monitored regularly and controlled with medication. In compliance with the Board's directives in its August 2017 remand, a new VA examination consisting of a review of the record in conjunction with a telephonic interview with the Veteran was conducted in October 2017 to produce addenda opinions. In response to the question of whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's hypertension was caused by or aggravated specifically by renal insufficiency, the October 2017 VA examiner opined that it is less likely than not (less than 50 percent probability). She explained that, according to the literature reviewed there is no known cause of hypertension and there was no evidence located that provides support for the Veteran's claim that renal insufficiency aggravated or caused the Veteran's diagnosis of hypertension. She added that hypertension was diagnosed in 1997, diabetes type II was diagnosed in 1999 and renal insufficiency did not manifest itself until approximately 2017 with a BUN (blood urea nitrogen) level of 17, creatinine of 1.40 and a GFR (glomerular filtration rate) of 46.4. In response to the question of whether it is as likely as not (a 50 percent probability or more) that the Veteran's diabetes predated his hypertension, the October 2017 VA examiner further opined that it is less likely than not (less than 50 percent probability). She explained that, according to the records, the Veteran saw his primary care physician and reported that his hypertension was diagnosed in 1996 and his diabetes was diagnosed in 1999. She stated there were no other records located regarding dates of onset for diabetes except a physician's note in 2006, which indicates the date of onset for diabetes was 1999. She added that laboratory results reported glucose at 167, BUN 16 and creatinine at 1.2. The October 2017 VA examiner further stated there is no other objective evidence found that supports the Veteran's claim that his diabetes predated the diagnosis of hypertension. She added that lay statements were reviewed and all medical findings located were considered. She further added that, in 1967, a blood pressure reading was recorded as 128/74 and in October, 1970 blood pressure reading was 122/86. Conclusion The Board has carefully reviewed and considered the Veteran's testimony and that of his wife at the May 2014 Board hearing and his statements submitted to the record, including his June 2009 Statement in Support of Claim, as well as his reports during examinations, as they appear throughout the record, all of which have assisted the Board in understanding better the nature and development of the Veteran's disability. As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and his wife are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. In particular, the Board is very much aware of the Board hearing testimony of the Veteran and his wife, stating the Veteran exhibited symptoms excessive thirst, cloudy urine and urine with a distinctive odor, and the assertion that these symptoms indicate the manifestation of diabetes before the diagnosis of hypertension. However, the Board must emphasize that the Veteran and his wife are not competent to diagnose or to interpret accurately subjective symptoms to be clinical "findings" of a disorder, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, nothing in the contemporaneous records, including those around the time that hypertension was diagnosed contain those complaints or any pertinent findings. Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As indicated above, the October 2017 VA examiner, having stated she had reviewed all lay statements, further stated the record indicated that the dates of diagnoses were 1997 for hypertension and 1999 for diabetes. The Board's own review and understanding of the clinical record indicates the same. As stated earlier in this decision, certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2017). Among the diseases included under § 3.309 (a) is "cardiovascular-renal disease, including hypertension." Because of the relationship of hypertension to specific disorders under the broad heading of cardiovascular-renal disease, disabling hypertension manifesting within one year following service will receive presumptive service connection, although not specifically listed under § 3.309 (a). However, the medical record does not provide clinical findings of the manifestation, findings, treatment, or diagnosis of hypertension within a one year period following service. Nor can continuity of symptomatology be established, as hypertension was not noted during the Veteran's service and therefore, there can be no post-service continuity of symptomatology. There are no objective findings noted during the Veteran's service, suggesting the presence of hypertension in service. For the reasons stated, the Board finds the objective medical evidence indicates that hypertension was diagnosed in 1997, diabetes was diagnosed in 1999. In addition, although the Board identified in the medical record the use of the term "renal insufficiency" in November 2010, as well as references to renal disorders as early as 1999, and therefore earlier than the October 2017 VA examiner's findings of 2017, nonetheless the record provides no clinical findings that renal insufficiency caused or aggravated the Veteran's hypertension. The Board therefore finds the record does not contain competent medical findings, an adequate opinion or a supporting rationale which establish facts contrary to the above. Based on the opinions of the October 2017 VA examiner, the Board further finds the Veteran's nonservice-connected hypertension is not secondary to his service-connected diabetes mellitus, type II, his hypertension is not aggravated by renal insufficiency associated with diabetes. The Veteran's hypertension is shown to be well controlled and not aggravated by either the diabetes or renal insufficiency. For these reasons, service connection cannot be established or presumed. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs