Citation Nr: 1808981	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO. 09-40 399	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to an initial rating in excess of 30 percent from November 2, 2006, to December 6, 2011, and in excess of 60 percent from December 7, 2011 for hypertensive heart disease, atrial fibrillation, history of cardioversion and coronary artery bypass graft surgery five vessels with residual scars (hereinafter, hypertensive heart disease).

2. Entitlement to a rating in excess of 10 percent for hypertension.

3. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected hypertensive heart disease and hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1966 to July 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2015, the matter was remanded for additional development.  [The Board has modified the Veteran's claims to encompass all disorders raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the [Veteran's] description of the claim; the symptoms the [Veteran] describes; and the information the [Veteran] submits or that the Secretary obtains in support of that claim").]

FINDINGS OF FACT

1. Prior to July 29, 2009, the Veteran's hypertensive heart disease did not result in congestive heart failure (CHF), a workload of 5 metabolic equivalents of task (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 50 percent or less.

2. From July 29, 2009, to December 7, 2011, the Veteran's hypertensive heart disease resulted in CHF, but did not result in a workload of 5 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 50 percent or less.

3. From December 7, 2011, the Veteran's hypertensive heart disease did not result in chronic CHF; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction less than 30 percent.
4. Throughout the appeal, the Veteran's hypertension was characterized by diastolic blood pressure of 100 or less and systolic blood pressure less than 200.

5. The preponderance of the competent and credible evidence is against a finding that the Veteran's diabetes mellitus, type II, is caused by or related to his active service, including service-connected hypertensive heart disease and hypertension.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 30 percent for hypertensive heart disease prior to July 29, 2009, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.104, Part 4, Diagnostic Codes 7007, 7017 (2017).

2. The criteria for an initial rating of 60 percent, but no higher, for hypertensive heart disease since July 29, 2009 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.104, Part 4, Diagnostic Codes 7007, 7017 (2017).

3. The criteria for a rating in excess of 10 percent for hypertension have not been met for any period of appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.104, Part 4, Diagnostic Code 7101 (2017).

4. The criteria for service connection for diabetes mellitus, type II, to include as secondary to service-connected hypertensive heart disease and hypertension, have not been met. 38 U.S.C. §§ 105(a), 1101, 1110, 1112, 1131, 1154, 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 notify and 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).

In a claim for increase, the VCAA requires notice of types of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Furthermore, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. §5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). 

With regard to the duty to assist, the Veteran's available service treatment records (STRs) and post-service treatment records have been secured. Pursuant to the Board's August 2015 remand, available private treatment records were also secured. Therefore, the Board finds that there has been substantial compliance with its prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In addition, VA examinations were afforded in January 2017, January 2013, December 2011, and February 2007. The Veteran has not challenged the adequacy of the examinations. 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); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159 (c)(4) (2017).

II. Legal Criteria & Analysis

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 
38 U.S.C. § 1155. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active military service and their residual conditions in civil occupations. 
38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). 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) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017).  Also, in both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
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. See 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").

The Board notes that it has reviewed all of the evidence in the Veteran's 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) (holding that 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, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

In a January 1989 rating decision, the RO granted service connection for hypertension and assigned a disability rating of 10 percent effective August 1, 1988. In November 2007, the RO granted service connection for hypertensive heart disease and assigned a disability rating of 30 percent under Diagnostic Codes 7007 (hypertensive vascular disease) and 7017 (coronary bypass surgery) effective November 2, 2006. Subsequently, in January 2014, the RO granted a 60 percent rating hypertensive heart disease effective December 7, 2011. The Veteran contends that his hypertension and hypertensive heart disease are severe than currently evaluated for the entire period of appeal.

The regulations establish a general rating formula for hypertensive heart disease and coronary bypass surgery. 38 C.F.R. § 4.104. Under the General Rating Formula, a 30 percent rating is warranted for either hypertensive heart disease and coronary bypass surgery resulting in a workload of greater than 5 METs, but not greater than 7 METs, that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram (EKG), or X-ray. In addition, a 60 percent rating is warranted for either hypertensive heart disease and coronary bypass surgery resulting in more than one episode of acute CHF in the past year, or; a workload of greater than 3 METs, but not greater than 5 METs, that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, Part 4, Diagnostic Codes 7007, 7017 (2017).

A 100 percent rating is warranted for hypertensive heart disease and coronary bypass surgery resulting in CHF, or; a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A 100 percent rating is warranted for coronary bypass surgery for three months following hospital admission for surgery. 38 C.F.R. § 4.104, Part 4, Diagnostic Codes 7007, 7017 (2017).

The regulations establish a general rating formula for hypertension. 38 C.F.R. § 4.104. Under the General Rating Formula, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. In addition, a 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. In addition, a 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Part 4, Diagnostic Code 7101 (2017).
The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The United States Court of Appeals for the Federal Circuit has embraced the Court's interpretation of the criteria for rating psychiatric disabilities as set out in Mauerhan. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).

The Veteran submitted to a VA examination in November 1988. The blood pressure tests performed in connection with the examination yielded the following results (with the systolic value over the diastolic value, in millimeters of mercury): 136/86, 124/84, 134/108, 140/90, and 134/90.

In August 2003, the Veteran underwent coronary artery bypass surgery at a private medical facility. The private treatment provider recorded the blood pressure levels of 105/70 and 130/80. See L.B.M.C.H. operative report; L.B.M.C.H. cardiac consultation note; L.B.M.C.H. history and physical note. Contemporaneous blood pressure tests from another private treatment provider were reflected blood pressure levels of 154/91 and 139/85. See M.H.I. adult heart catheterization summary sheet.

A bicycle exercise test and echocardiogram were performed by a private physician, Dr. H.R., in July 2005. Dr. H.R. noted a dilated left atrium, left ventricular hypertrophy, and normal overall left ventricular systolic function. Blood pressure tests reflected pressure levels of 128/70 and 186/70. Further tests were performed in October 2005, revealing blood pressure levels of 138/72 and 148/72 as well as normal EKG changes and resting overall left ventricular systolic function.

Dr. H.R. performed an additional bicycle exercise test and echocardiogram in January 2006. He gave an impression of dilated left atrium and left ventricular hypertrophy. He also reported normal cardiac function. A blood pressure test found a blood pressure level of 118/70. Subsequent blood pressure tests in 2006 revealed blood pressure levels of 110/80 and 130/90. See April 2006 R.P.M.G. cardiac consultation note; December 2006 progress note by Dr. S.L.

In February 2007, the Veteran underwent a VA internal medicine examination. Blood pressure tests yielded the following results: 120/80, 122/80, and 122/80. An electrocardiogram (EKG) revealed an ejection fraction of 60 percent. The examiner performed an interview-based METs test, which recorded a workload of 6 to 7 METs.

The Veteran visited his VA primary care physician in July 2010. His blood pressure level was found to be 120/80. In February 2011, he presented to a VA cardiology consultation during which his blood pressure level was reportedly 125/54.

A VA examination regarding the Veteran's heart condition and hypertension took place in December 2011. Blood pressure tests revealed the following results: 122/78, 126/78, and 126/80. An EKG performed in connection with the examination revealed a left ventricular ejection fraction of 65 percent. An interview-based METs test revealed a workload of greater than 3 to no more than 5 METs resulting in angina. The examiner noted that the METs level limitation was due solely due to the Veteran's service-connected heart condition. In addition, the examiner indicated that the Veteran did not have CHF.

In July 2012, the Veteran's private physician reported a left ventricular ejection fraction of 65 percent. See R.P.M.G. echocardiogram report.

An additional VA examination was performed in January 2013. The Veteran's blood pressure levels were recorded as follows: 138/70, 140/70, and 144/70. An EKG revealed a left ventricular ejection fraction of 65 percent. An interview-based METs test revealed a workload of greater than 3 to no more than 5 METs resulting in dyspnea, fatigue, and angina. The examiner noted that the METs level limitation was due solely due to the Veteran's service-connected heart condition. The examiner also noted that the Veteran did not have CHF.

In a May 2014 letter, the Veteran's private physician, Dr. S.L., noted that the Veteran's cardiac condition was worsening because of multiple coronary artery disease risk factors, which were not well controlled, with resultant diastolic CHF and significant shortness of breath.

The Veteran presented to a private cardiac consultation in September 2015. The private treatment provider noted a diagnosis of unspecified diastolic heart failure from August 2011 and a diagnosis of hypertensive heart disease with CHF from July 29, 2009. In addition, the provider noted blood pressure levels of 130/67, 94/78, and 114/70. See R.P.M.C. cardiac consultation note.

In an April 2016 progress note, a private physician, Dr. L.R., noted a blood pressure level of 150/80. Other private progress notes from April 2016 noted blood pressure levels of 140/70 and 135/72. See R.P.M.C. cardiac consultation notes

More recently, in January 2017, the Veteran underwent a VA examination in regard to his heart condition and hypertension. Blood pressure levels were recorded as follows: 120/80, 122/82, and 122/78. An EKG revealed a left ventricular ejection fraction of 60 percent. Further, an interview-based METs test revealed a workload of greater than 3 to no more than 5 METs resulting in dyspnea and fatigue that was solely due to the Veteran's service-connected heart condition. The examiner indicated that the Veteran has not had CHF.

Upon review of the evidence, the Board finds, first, that a rating in excess of 30 percent for hypertensive heart disease prior to July 29, 2009, is not warranted. The only METs test performed during this portion of the period of appeal was in the February 2007 VA examination. That test recorded a workload of 6 to 7 METs. Further, the only left ventricular ejection fraction rate of record prior to July 29, 2009, was reported at 60 percent. There is no evidence to doubt the credibility of the examiner. While the Veteran was hospitalized for coronary artery bypass surgery, the surgery occurred in August 2003, years before the Veteran filed the service connection claim for hypertensive heart disease. Further, there is no indication that the Veteran had either chronic CHF or more than one episode of acute CHF prior to July 29, 2009. With no other pertinent, competent evidence of record, the criteria for an initial rating in excess of 30 percent for hypertensive heart disease prior to July 29, 2009, have not been met. 38 C.F.R. § 4.104, Part 4, Diagnostic Codes 7007, 7017.

Secondly, the Board finds that a rating of 60 percent for hypertensive heart disease from July 29, 2009, to December 7, 2011, is warranted. Private treatment records from Dr. S.L. reflect a diagnosis of CHF as early as July 29, 2009. While subsequent VA examinations indicated that the Veteran did not have CHF, no VA examination was performed around July 29, 2009, that discounted the presence of CHF. Moreover, Dr. S.L. later confirmed in a May 2014 letter that the Veteran continues to have diastolic CHF along with a worsening cardiac condition. While Dr. S.L. did not give a rationale for his finding, the VA examiners similarly did not provide a basis for finding that the Veteran did not have CHF. Moreover, there is no evidence to doubt Dr. S.L.'s credibility. Finding the evidence of the presence and absence of CHF prior to July 29, 2009, in relative equipoise, the Board must resolve all reasonable doubt must be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.104, Part 4, Diagnostic Codes 7007, 7017.

In doing so, however, the Board finds that a rating in excess of 60 percent for hypertensive heart disease is not warranted from July 29, 2009, to December 7, 2011, or thereafter. While the Board has acknowledged the diagnosis of CHF in July 29, 2009, there is no indication that the diagnosed CHF was chronic. In fact, the subsequent August 2011 diagnosis of unspecified diastolic heart failure included a citation to the International Classification of Diseases (ICD) designation for CHF, I50.30, as opposed to the designation for chronic CHF, I50.32. There is also no competent indication in the record that the Veteran's heart condition resulted in a workload of 3 METs or less or was characterized by left ventricular dysfunction with an ejection fraction of less than 30 percent. Accordingly, the criteria of a 100 percent rating for hypertensive heart disease have not been met. 38 C.F.R. § 4.104, Part 4, Diagnostic Codes 7007, 7017.

Finally, the Board finds that a rating in excess of 10 percent for hypertension is not warranted for any period of appeal. The Board has carefully reviewed the numerous blood pressure levels reported in VA and private treatment records, and there is no competent evidence of diastolic pressure predominantly 110, 120, 130, or more. There is also no competent evidence of systolic pressure predominantly 200 or more. As stated above, there is no evidence to doubt the credibility of the VA or private physicians of record. Accordingly, the criteria for a rating in excess of 10 percent for hypertension have not been met for any period of appeal. 38 C.F.R. § 4.104, Part 4, Diagnostic Code 7101.

In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against entitlement to a rating higher than that which is granted herein for hypertensive heart disease and against a higher rating for hypertension, that doctrine is not helpful to the Veteran. 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

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, 1131; 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 diabetes mellitus, 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. In cases of 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. If there is no showing of 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).

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). In order 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) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Allen v. Brown, 8 Vet. App. 374 (1995). 

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. See 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.

The Board has reviewed all of the evidence in the Veteran's 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) (holding that 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, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran's STRs are silent with respect to a diagnosis of diabetes mellitus.

In April 2006, the Veteran presented to a private cardiac consultation. The private physician noted a diagnosis of diabetes mellitus. See R.P.M.G. cardiac consultation note & September 2006 letter from Dr. L.R.; December 2006 letter from Dr. S.L.

In his November 2008 notice of disagreement (NOD), the Veteran contended that his diabetes mellitus is related to elevated lipids in the blood, high cholesterol, blood pressure, and stress and food he was served in the military. Specifically, the Veteran cited stress from being separated from his family and job-related stress while in service. Further, the Veteran indicated that his diabetes mellitus is related to serving in the engineering departments of Coast Guard vessels, which were reportedly contaminated with asbestos, insulations, and hazardous toxic chemicals. He also noted that he served in poorly ventilated compartments, such as engine rooms, sewage treatment systems, and holds. See also October 2009 VA Form 9.

At the outset, the Board notes that the Veteran's STRs are silent with respect to a diagnosis of diabetes mellitus. Further, there is no competent and credible evidence of record of a diagnosis or complaints of diabetes mellitus within the year following the Veteran's discharge from active service. Therefore, service connection for diabetes mellitus cannot be presumed under 38 C.F.R. § 3.307, and the 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 preponderance of the competent and credible evidence is against a finding that the Veteran's diabetes mellitus, type II, is caused by or related to his active service. First, the Board notes that a VA examination regarding the Veteran's diabetes has not been obtained. The Board acknowledges the Veteran's current diagnosis of diabetes mellitus, type II. The Board also acknowledges his contention that his diabetes is related to his service-connected hypertension and hypertensive heart disease, service-related stress, and exposure to hazardous conditions in service, including asbestos. However, as a lay person, he is not competent to testify to the etiology of his diabetes or the potential impact of hypertension, hypertensive heart disease, stress, or hazardous substances has on diabetes mellitus. Jandreau v. Nicholson, 492 F.3d at 1377. There is no other evidence of record regarding the etiology of the Veteran's diabetes mellitus. Without a competent indication that the Veteran's diabetes mellitus is linked to service or to a service-connected disability, a VA examination is not required. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Further, the Board notes that service connection is not currently in effect for elevated lipids in the blood or high cholesterol, whether from food in service or otherwise. Accordingly, secondary service connection cannot be established on those grounds.

The Board acknowledges the Veteran's long and honorable service. With no competent evidence of a nexus in the record, however, service connection for the diabetes mellitus, type II, cannot be granted at this time. 38 C.F.R. §§ 3.303, 3.310. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against his service connection claim for diabetes mellitus, type II, that doctrine is not helpful to the Veteran. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).








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ORDER

Entitlement to an initial rating in excess of 30 percent for hypertensive heart disease prior to July 29, 2009, is denied.

Entitlement to an initial rating of 60 percent, but no higher, for hypertensive heart disease since July 29, 2009 is granted, subject to the law and regulations governing payment of monetary benefits.

Entitlement to a rating in excess of 10 percent for hypertension is denied. 

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




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs