Citation Nr: 0722250 Decision Date: 07/23/07 Archive Date: 08/02/07 DOCKET NO. 06-07 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for hypertension to include as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from June 1968 to November 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2007, the veteran testified before the undersigned at a hearing in Washington, D.C. The issues of service connection for diabetic retinopathy and erectile dysfunction as secondary to diabetes mellitus have been raised. The Board refers these issues to the RO for appropriate action. FINDING OF FACT The competent, credible evidence of record indicates the veteran's diagnosed hypertension is related to his service- connected diabetes mellitus. CONCLUSION OF LAW Hypertension is proximately due to service-connected diabetes mellitus. 38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.310(a) (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. With regard to the issue of entitlement to service connection for hypertension, the veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In addition, hypertension will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 38 C.F.R. § 3.303(b). In addition, 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). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service- connected disability and the nonservice-connected disease or injury. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). 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). Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service- connected disease or injury. 38 C.F.R. § 3.310(a) (2006). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). In determining whether service connection is warranted for a disability, VA is responsible for determining 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). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). At the outset, the Board notes that there is no competent medical evidence that the veteran's diagnosed hypertension is directly related to service. Hypertension was not initially manifest during service or within the one year presumptive period. In addition, a VA examiner has noted that hypertension was not shown in service. See VA examination reports dated October and December 2004. The veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, No. 2007-4019 WL 1892301 Vet. App. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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")). See Barr v. Nicholson, No. 04-0534 WL 1745833 Vet. App. June 15, 2007). The veteran is competent to state that he has been told that his blood pressure readings were high and that he has hypertension. However, since hypertension is not a simple diagnosis, he is not competent to make that diagnosis or to provide an assessment as to any etiological relationship between hypertension and service and/or diabetes mellitus. Thus, the veteran's testimony in written correspondence and at his hearing is not competent in that regard. The veteran is not competent to opine that his hypertension originated during service. The medical evidence, which is competent as it was provided by medical professionals, shows that hypertension is not directly related to service. These reports are more probative than the veteran's opinion as his opinion is not competent in that regard. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, the Board finds that hypertension is not directly attributable to service or manifest in the presumptive year. The veteran primarily contends that his hypertension is due to his service-connected diabetes mellitus. VA medical records including VA examination reports, hospitalization reports, and outpatient records, first reflect an actual diagnosis of hypertension on November 20, 1996. Thereafter, he was again noted to have hypertension on August 4, 1997. The veteran was subsequently treated and medicated for his hypertension, continuously. The Board notes that there are few VA records dated in the 1980's. In July 2004, the veteran was afforded a VA examination. At that time, it was noted that the veteran had been diagnosed at age 36 (approximately in the mid-1980's) with hypertension. He had been placed on insulin and remained insulin-dependent. It was further noted that the veteran had coronary artery disease as well as polyneuropathy. The diagnoses were Type II diabetes mellitus; atypical chest pain with abnormal stress test in 2003 showing ejection fraction of 35 percent and areas of myocardial ischemia; and symptoms of polyneuropathy in the feet with no objective findings on current examination. Based on the July 2004 examination, in an August 2004 VA rating decision, service connection was granted for coronary artery disease with history of myocardial infarctions secondary to diabetes mellitus, and a 60 percent rating was assigned.. In October 2004, the veteran was afforded a VA examination. The claims file was reviewed. At that time, it was noted that the veteran had a blood pressure reading of 190/40 in May 1985, but he was not diagnosed as having hypertension until the late 1990's. The veteran was placed on oral medications, but his control was poor. The examiner indicated that hypertension was not documented during service. It was diagnosed in 1985, with documentation of hypertension in 1997 (it was actually 1996). The examiner noted that the veteran had significant complications due to the diabetes mellitus. The examiner stated that hypertension was not secondary to diabetes mellitus in general, however, it was fairly prevalent in diabetic patients. It was therefore felt that it was at least as likely as not that the veteran's hypertension was related to his diabetic condition. Two months later, in December 2004, the same examiner rendered a different opinion. The examiner stated that hypertension had been present since 1997 and medications had been increased since the diagnosis. The diabetes mellitus was fairly well-controlled with normal hemoglobin A1C on current diabetic regimen. There was no evidence of impaired renal function. The examiner stated that hypertension in diabetic patients was almost always from end-organ (renal) involvement from diabetes. The veteran's hypertension was therefore less likely as not related to his service-connected diabetes mellitus. The Board notes that the same medical laboratory findings were present at the time of both examinations. They were performed in October 2004. The examiner changed his opinion based on the lack of renal involvement; however, this fact was evident at the time of the October 2004 examination. The examiner initially indicated that hypertension was fairly prevalent in diabetic patients as the basis of his or her opinion. The examiner then changed the opinion, stating that hypertension was essentially prevalent in diabetic patients with renal involvement. However, the examiner knew that the veteran did not have renal involvement when the initial opinion was rendered and he or she believed that the veteran's hypertension was likely related to service, even without renal involvement, as none was present. Further, the examiner did not discuss the veteran's coronary artery disease which has been determined to be due to the diabetes mellitus and has been rated as 60 percent disabling. The examiner also did not discuss if the veteran's hypertension was aggravated by either the coronary artery disease or the diabetes mellitus. There is no opinion regarding aggravation whatsoever. The examiner who performed the examination constrained his scope of inquiry and tainted his conclusion when he was asked only to opine whether hypertension was caused or aggravated by service-connected diabetes, not whether hypertension was caused or aggravated by service-connected heart disease. See Bielby v. Brown, 7 Vet. App. 260, 269 (1994). In sum, the veteran has been determined by VA to have significant cardiovascular disease as a result of the veteran's diabetes mellitus, as supported by the July 2004 examination report. The VA examiner conducting the subsequent examinations provided contradictory conclusions; one of the opinions provided an etiological relationship between hypertension and diabetes mellitus. The Board finds that the medical evidence of record is therefore in relative equipoise as to the matter of whether hypertension is proximately due to or aggravated by diabetes mellitus. The evidence in this case is so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for hypertension is warranted. ORDER Service connection for hypertension is granted. ____________________________________________ MARY C. PELTZER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs