Citation Nr: 21031888 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-42 891 DATE: May 24, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for diabetes mellitus, type II, is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for hypertension (claimed as high blood pressure) is granted. Service connection for diabetes mellitus, type II as secondary to service-connected Wolff-Parkinson-White Syndrome (WPW) is granted. Service connection for hypertension is granted. FINDINGS OF FACT 1. In an unappealed rating decision issued in August 2013, the Agency of Original Jurisdiction (AOJ) denied service connection for diabetes mellitus, type II, and hypertension, characterized as high blood pressure. 2. Evidence associated with the record since the final denial in August 2013 is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes mellitus, type II, and hypertension. 3. Resolving all doubt in the Veteran's favor, his diabetes mellitus, type II, is proximately due to his service-connected WPW. 4. The Veteran's hypertension had its onset during active service. CONCLUSIONS OF LAW 1. The August 2013 rating decision that denied service connection for diabetes mellitus, type II, and hypertension, characterized as high blood pressure, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for diabetes mellitus, type II. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.301, 3.302, 3.303, 3.307, 3.310. 5. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.301, 3.302, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1979 to January 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 Department of Veterans Affairs (VA) Regional Office rating decision. In that rating decision, the AOJ confirmed and continued a denial for service connection for high blood pressure and diabetes mellitus type II. The Veteran's notice of disagreement was received in January 2015. The AOJ issued a statement of the case in August 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in August 2017. In February 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. A transcript of the testimony is associated with the claims file. New and Material Evidence Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been previously disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claim of service connection for diabetes mellitus, type II. 2. Whether new and material evidence has been received to reopen the claim of service connection for hypertension. By way of background, VA received the Veteran's original claims for service connection for type II diabetes and hypertension in October 2012. In an August 2013 rating decision, the AOJ denied the claims for service connection for diabetes mellitus type II and hypertension, to include as secondary to WPW. The RO denied service connection for diabetes mellitus type II based on a finding of no link between the diabetes and military service. In addition, the AOJ noted the April 2013 WPW VA examination reported no other pertinent physical findings, complications signs or symptoms related to WPW. The RO denied service connection for hypertension for lack of evidence showing an event, disease or injury in service. The AOJ also noted an April 2013 VA examiner's opinion that the Veteran's hypertension is less likely than not due to his service-connected heart condition as "there is no pathophysiologic correlation between the two conditions." The Veteran received notification of the rating decision and his appellate rights in August 2013. The Veteran did not submit a Notice of Disagreement (NOD) or new and material evidence within the one-year appeal period following notice of the August 2013 rating decision. Therefore, the August 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. The evidence received after the August 2013 rating decision includes the Veteran's testimony at the February 2021 virtual Board hearing and a February 2021 private medical opinion. During the Board hearing, the Veteran's representative asserted the Veteran's service-connected WPW restricts his ability to exercise and has led to substantial weight gain, thereby contributing to the development of diabetes. The representative also testified that the Veteran was placed on high blood pressure medicine during active duty in 1989 and has been on the medication ever since. In addition, the February 2021 private medical opinion provides a positive nexus between the Veteran's service-connected WPW and his diabetes. This evidence did not exist at the time of the August 2013 rating decision. For purposes of determining whether the testimony at the February 2021 virtual Board hearing and February 2021 private medical opinion are new and material, the credibility of the evidence is presumed. Overall, the evidence is not redundant or duplicative, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for diabetes mellitus type II and hypertension. Therefore, new and material evidence has been received, and the claims are reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease, such as diabetes mellitus or hypertension, is shown as such in service, subsequent manifestations of the same chronic disease are generally service-connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection also may be established 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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 3. Entitlement to service connection for diabetes mellitus, type II, as secondary to service-connected WPW. The Veteran contends his diabetes mellitus is proximately caused by his service-connected WPW. Specifically, the WPW prevented the Veteran from exercising, which contributed to his obesity and led to his diabetes mellitus. As an initial matter, the Veteran does not claim, nor does the evidence suggest, that his diabetes mellitus, type II, had its onset during military service. In this regard, his service treatment records are negative for any complaints, treatment, or diagnosis referable to diabetes mellitus, type II, and such did not manifest until many years after separation from service. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008). Service connection for diabetes mellitus, type II, on a direct and/or presumptive basis is therefore denied. 38 C.F.R. § 3.307, 3.309. Rather, the Veteran contends he used to be a very active person, but as a result of his service-connected WPW, he experiences chronic fatigue, shortness of breath, frequent dizzy spells and excessive heart palpitations, which, in turn, led to the development of diabetes mellitus, type II. Thus, he claims service connection for such disorder as secondary to his service-connected WPW. In this regard, the record reflects that the Veteran has a current diagnosis of diabetes mellitus, type II, as of June 2010, as evidenced by treatment records from the Tuskegee VA Medical Center. Private clinic records from the Columbus Clinic show that the Veteran was prescribed insulin for control of his diabetes. See e.g., February 2014 History and Physical Report. Additionally, service connection has been established for WPW effective October 4, 2012. Furthermore, the Veteran has competently reported fatigue, dizziness, and functional impairment that limits his ability to exercise. Consequently, the remaining inquiry is whether the Veteran's service-connected WPW caused or aggravated his diabetes mellitus, type II, to include as a result of fatigue, dizziness, and an inability to exercise. Obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). VAOPGCPREC 1-2017. In order to establish secondary service connection under such theory, a veteran must show (1) that his service-connected disability caused him to become obese; and, if so (2) whether the obesity as a result of the service-connected disability was a substantial factor in causing his claimed condition, and (3) whether the claimed condition would not have occurred but for obesity caused by the service-connected disability. Id. The United States Court of Appeals for Veterans Claims also has held that such extension of service connection through obesity as an intermediary step may also be considered on the basis of aggravation. See Walsh v. Wilkie, 32 Vet. App. 300 (2020). Service treatment records show the Veteran underwent heart surgery due to his WPW in January 1989 and again in June 1990. The Veteran was ordered on bedrest followed by a prohibition on physical activities due to exercise intolerance and excessive fatigue. During the February 2021 virtual Board hearing, the Veteran describes having been an active person who was an avid racquetball player and marathon runner; however, after the onset of WPW, the Veteran could no longer walk up a flight of stairs without getting tired or dizzy. As a result, he began putting on weight. He went from 188 pounds in February 1989, to 205 pounds in June 1992, to 236.5 pounds in May 2001, and to 244 pounds in January 2005. The Veteran's treating private physician, Dr. B., wrote in a February 2021 medical opinion that as a result of his WPW, the Veteran suffers from chronic fatigue, frequent dizzy spells, shortness of breath and excessive heart palpitations, which in turn have restricted him from being able to conduct any form of physical exercise. The lack of exercise has ultimately led to gaining an excessive amount of weight from which the Veteran has now developed diabetes mellitus, type II. She further noted the Veteran has no other known risk factors that may have precipitated his development of diabetes and cited to studies concluding a correlation between diabetes mellitus, type II, and weight gain. Dr. B. concluded: As a result of [the Veteran's] excessive weight gain, it is my medical opinion that his Diabetes has been aggravated by his Wolff-Parkinson-White syndrome, I therefore conclude that [the Veteran's] Diabetes is more likely than not secondary to his service-connected Wolff-Parkinson-White syndrome. Regarding the probative value of the above opinion, the Board assigns significant probative value to the opinion of Dr. B., who has treated the Veteran on multiple occasions, reviewed his military and post-military medical records in forming her opinion, and addressed the link between WPW, obesity, and diabetes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the record includes no medical opinion to the contrary. Accordingly, the most probative medical evidence of record suggests that the Veteran has a current diagnosis of diabetes mellitus, type II, proximately due to his service-connected WPW. Resolving all doubt in his favor, therefore, the Board finds the criteria for service connection for diabetes mellitus, type II, as secondary to service-connected WPW have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. Entitlement to service connection for hypertension. The Veteran contends his hypertension is directly related to an in-service injury. Specifically, following a heart attack, the Veteran underwent heart surgery in January 1989 and June 1990, from which time he has been prescribed medication to control his high blood pressure. The record reflects that the Veteran has a current diagnosis of hypertension as evidenced by the April 2013 VA hypertension examination. Service treatment records show the Veteran underwent heart surgery due to his WPW in January 1989 and again in June 1990. Upon discharge from his January 1989 surgery, doctors prescribed 250 milligrams (mg) of Flecainide, 50 mg of Lopressor, and 80mg of Inderal LA as medical therapy to treat the Veteran's high blood pressure. Several months later, after his June 1990 surgery, doctors continued prescribing 200 mg of Flecainide and 80 mg of Inderal LA. The Veteran was afforded a VA examination in April 2013. Upon examination, the VA examiner diagnosed hypertension. The Veteran reported an onset of high blood pressure symptoms in 1991 and stated that the condition had gotten worse and required continuous medication. The examiner noted a history of a diastolic [blood pressure] elevation to predominantly 100 or more specifically - the frequency and severity of diastolic elevation is uncontrolled. The Veteran further reported his [blood pressure] is persistently elevated despite medication. The examiner concluded the Veteran's hypertension was less likely than not proximately due to or the result of his service-connected WPW, based on the finding that there is no pathophysiologic correlation between the two conditions. During the February 2021 virtual Board hearing, the Veteran testified he has been experiencing an underlying problem of high blood pressure since service, has seen several doctors who still have not pinpointed the right medication to get his blood pressure under control, and that the condition continues to impact his life. The evidence suggests, as does the Veteran assert, that his hypertension had its onset during service. In this regard, his service treatment records are positive for complaints and treatment of such disorder. While in service, the Veteran was prescribed medications designed to regulate his blood pressure. As such, the Veteran's hypertension was implicitly diagnosed during active duty. Additionally, the medical evidence of record reflects continuous treatment for such disability as well as a diagnosis of a disability during the pendency of the appeal. Accordingly, service connection for hypertension on a presumptive basis is warranted. 38 C.F.R. § 3.307, 3.309. Therefore, the Board finds the criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.