Citation Nr: 1808030 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-15 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, type II. 2. Entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1974. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. In an unappealed rating decision issued in February 2008, service connection for hypertension, on a direct basis and as secondary to the service-connected diabetes mellitus, type II, was denied. 2. The evidence received since the February 2008 rating decision relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for hypertension, on a direct basis and as secondary to the service-connected diabetes mellitus, type II. 3. The competent and credible evidence is in relative equipoise as to whether the Veteran's hypertension is caused or aggravated by his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, type II. 38 U.S.C. §5108 (2012); 38 C.F.R. § 3.156 (2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for the grant of service connection for hypertension, as secondary to the service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) defined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (a) (2017). However, in view of the Board's favorable decision herein, further assistance is unnecessary. II. Legal Criteria & Analysis New & Material Evidence As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. §3.156 (a). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d at 1384; Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly received evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate decision to be made if evidence is new and material. Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C. §5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. §3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. The Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. In March 2004, the RO granted service connection for diabetes mellitus, type II. The Veteran then filed a service connection claim for hypertension. In a February 2008 rating decision, the RO denied service connection for hypertension on the basis that the evidence of record did not show a relationship between this disorder and the service-connected diabetes mellitus, type II, or the Veteran's active duty. The RO did not receive a timely appeal, and the decision became final. Subsequently, the Veteran filed a claim to reopen the service connection claim for hypertension. In support of his petition, the Veteran submitted a private medical opinion and a statement from his spouse, who is a registered nurse. See August 2010 Letter from Dr. G.L.; August 2010 Letter from J.K. Both statements, discussed in detail below, affirm that the Veteran has a diagnosis of hypertension associated with his service-connected diabetes mellitus, type II. The Board finds that new and material evidence has been received with respect to the Veteran's service connection claim for hypertension. The statements received from the Veteran's private physician and his spouse, a registered nurse, constitute competent evidence of an etiological relationship between the Veteran's diagnosed hypertension and his service-connected diabetes mellitus, type II. Moreover, no such opinion was available for review when the RO issued its February 2008 rating decision. Accordingly, the claim for service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II, is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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); 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including hypertension, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. Without a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptoms). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Here, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate. The analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A review of the Veteran's service treatment records does not reveal a diagnosis of hypertension during active service. See, e.g., February 1971 Report of Medical Examination; May 1974 Report of Medical Examination. Post-service treatment records reflect a longstanding history of hypertension. See, e.g., June 2000 S.W.M.A. progress note; April 2003 S.W.M.A. progress note; March 2007 VA primary care note; December 2015 VA primary care note. In August 2010, the RO received a letter from the Veteran's spouse, J.K., in regards to his hypertension. A registered nurse, J.K. noted that the Veteran's private treatment records dating back to the 1980s have been destroyed. However, J.K. provided a timeline of the symptomatology of the Veteran's hypertension and service-connected diabetes and noted that the hypertension developed over time as the diabetes worsened. She opined that the Veteran's service-connected diabetes mellitus, type II, has had a direct impact on his hypertension. Additionally, the RO received an August 2010 letter from the Veteran's private physician, Dr. G.L. The physician noted that the Veteran has had hypertension and diabetes since the 1990s and that the two conditions are associated. Specifically, he indicated that the Veteran required the addition of a third antihypertensive medication to control his blood pressure as his diabetic control worsened. In October 2010, the Veteran underwent a VA examination in regard to his service-connected diabetes mellitus, type II. The examiner reported a diagnosis of hypertension from 1999, after the Veteran's diagnosis of diabetes, and noted that the Veteran did not start treatment for hypertension until 2002. However, the examiner found that the Veteran did not have any secondary complications to diabetes at the time. Specifically, the examiner noted that, while the Veteran has comorbid hypertension that had its onset after the diagnosis of diabetes, "one could not say that the diabetes caused the hypertension" given the Veteran's normal renal function. See October 2010 VA examination report. According to the examiner, when diabetes leads to hypertension, it usually leads to kidney disease that then leads to hypertension, which is not the Veteran's case. An addendum VA opinion from the examiner was received in January 2011. The examiner stated that he disagreed with Dr. G.L.'s opinion, stating that two conditions that commonly occur together and are found in the same individual does not establish that one condition pathologically caused the second condition. The examiner also found that J.K.'s observation that the Veteran's hypertension developed overtime as his diabetes worsened does not imply causation. Further, the examiner reiterated that one of the more common types of manifestations of secondary hypertension is kidney disease, and the Veteran has normal kidney functions. The examiner concluded that the Veteran does not have secondary hypertension caused by diabetes. The Veteran submitted a medical opinion from another private physician, Dr. J.M., in May 2013. Dr. J.M. stated that past available data indicated a positive microalbumin in January 2003, during which time the Veteran's prescribed intake of Lisinopril was increased. Dr. J.M. also stated that past chemistries suggested early renal insufficiency. Specifically, the examiner cited to laboratory results from February 2000, December 2002, and December 2005 that he stated were abnormal. Dr. J.M. determined that these findings "strongly suggest" that the Veteran has longstanding type II diabetes with microvascular disease involving his kidneys and resulting in or contributing to his hypertension. May 2013 Letter from Dr. J.M. At the outset, the Board notes that the Veteran's STRs are silent with respect to a diagnosis of hypertension. Further, there is no competent and credible evidence of record of a diagnosis or complaints of hypertension within the year following the Veteran's discharge from active service. Therefore, service connection for hypertension cannot be presumed under 38 C.F.R. § 3.307, and the Veteran's service connection claim must meet the criteria for general service connection claims. 38 C.F.R. § 3.303. Upon review of the record, the Board finds that the competent and credible evidence of record is in relative equipoise as to whether the Veteran's hypertension is caused, or aggravated, by his service-connected diabetes mellitus, type II. The medical record establishes a current diagnosis of hypertension. The only VA examination of record and its corresponding addendum noted that, when diabetes leads to hypertension, it usually leads to kidney disease and, subsequently, to hypertension. Kidney disease, the examiner stated, is one of the more common manifestations of secondary hypertension, and the Veteran has normal kidney functions. Further, the examiner stated that hypertension that develops over time with worsening diabetes does not imply causation. The examiner, therefore, concluded that the Veteran does not have secondary hypertension caused by diabetes. The Board finds no evidence to doubt the examiner's credibility. The Board also acknowledges the VA examiner's arguments in response to the positive opinions from Dr. G.L. and J.K. Neither of the positive opinions provided a sufficient rationale to conclude that the Veteran's service-connected diabetes was associated with his hypertension. Nonetheless, the Board notes that the VA examiner also did not provide a sufficient rationale in that he did not address the issue of aggravation. According to the examiner, diabetes that "leads" to hypertension usually "leads" to kidney disease first. October 2010 VA examination report. However, the examiner's reasoning does not answer whether the Veteran's diabetes aggravates, rather than causes, his hypertension. Moreover, the record reflects competent and credible evidence of renal disease. Dr. J.M. stated in his letter that data from January 2003 indicated a positive microalbumin, i.e., increased protein in the urine. See Dorland's Illustrated Medical Dictionary 1150 (30th ed. 2003). The increased urinary albumin also coincided with an increase in the Veteran's intake of Lisinopril. According to Dr. J.M., abnormal laboratory studies reflected early renal insufficiency. He therefore concluded that the studies "strongly suggest" that Veteran's diabetes resulted in or contributed to his hypertension. The Board notes that whether or not the evidence "strongly suggests" that the Veteran's hypertension is caused or aggravated by service is not the correct standard for establishing service connection. See 38 C.F.R. §§ 3.102, 4.3. However, acknowledging the detailed rationale of Dr. J.M.'s opinion, the Board finds that the evidence for and against a finding of a nexus between the Veteran's hypertension and his service-connected diabetes are equally probative. Accordingly, reasonable doubt must be resolved in favor of the Veteran. See 38 C.F.R. §§ 3.102, 3.303, 3.310. ORDER New and material evidence having been received, the issue of whether new and material evidence sufficient to reopen a previously denied claim for service connection for hypertension, to include as secondary to the service-connected diabetes mellitus, type II, has been received is granted. Service connection for hypertension, as secondary to service-connected diabetes mellitus, type II, is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs