Citation Nr: 1749048	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  08-35 158	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, Delaware


THE ISSUES

1.  Entitlement to service connection for diabetes mellitus, including as secondary to posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a heart condition, including as secondary to PTSD.

3.  Entitlement to service connection for hypertension, including as secondary to PTSD.  


REPRESENTATION

Appellant represented by:	Alfrey R. Martin, Jr., per 38 C.F.R. § 14.630.


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

D. Schechter, Counsel


INTRODUCTION

The Veteran served on active duty from October 1971 to October 1973 and from November 1990 to July 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in March 2009.  A transcript is of record.  

The Board remanded the appealed issues for additional development in April 2010 and again in April 2014.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The most probative evidence of record indicates that the Veteran's diabetes mellitus is not related to his service or to his service-connected PTSD, was not aggravated by his service-connected PTSD, and was not manifested until after the first year following his July 1991 separation from his last period of active service. 


2.  The most probative evidence of record indicates that the Veteran's heart conditions are not related to his service or to his service-connected PTSD, and are not aggravated by his service-connected PTSD.  The most probative evidence also indicates that ischemic heart disease was not manifested until after the first year following his July 1991 separation from his last period of active service.

3.  The most probative evidence of record indicates that the Veteran's hypertension is not related to his service or to his service-connected PTSD, was not aggravated by his service-connected PTSD, and was not manifested until after the first year following his July 1991 separation from his last period of active service.


CONCLUSIONS OF LAW

1.  The requirements for establishing service connection for diabetes mellitus have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).

2.  The requirements for establishing service connection for a heart condition have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).

3.  The requirements for establishing service connection for hypertension have      not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R.      §§ 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veteran's Claims Assistance Act

Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by letters in April 2008 and December 2014.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination reports.  The Veteran was afforded a hearing before the Board and a copy of the transcript is of record.  There is no allegation that the hearing provided to the Veteran was deficient in any way.  Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

The Board also notes that actions requested in the prior remands have been undertaken.  In this regard, further notice was provided to the Veteran regarding information required to support secondary service connection, additional treatment records were obtained, and adequate examinations were conducted with requested opinions obtained.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).  
 
While additional medical evidence was received since the last supplemental statement of the case (SSOC) addressing the appealed claims in March 2016, none of this evidence was pertinent to the bases of denials of claims herein. The Veteran's claimed disabilities - diabetes mellitus, a heart condition, and hypertension - were already well-established by the record, and the new evidence, while including treatment or examination addressing these conditions or addressing PTSD, do        not relate to any service etiology of these claimed conditions or any link based on causation or aggravation between these claimed conditions and PTSD. Hence, the Board finds no prejudice in proceeding to a decision notwithstanding the RO's not having reviewed this additional evidence.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Appellant.  Id. 

II.  Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a)   may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
	
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).  

Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310.  The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice-connected disability caused by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b).

Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus, hypertension, or ischemic heart disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017).  

Veterans who, during active military, naval, or air service, served in the Republic     of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii) (2017).  Additionally, Section 3.307(a)(6)(iv) extends the presumption to Veterans who served between April 1, 1968 and August 31,1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period.  See 38 C.F.R. § 3.307(a)(6)(iv).

The Board has reviewed all the evidence in the record.  Although the Board has    an obligation to provide adequate reasons and bases supporting this decision,    there is no requirement that the evidence submitted by the appellant or obtained    on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the 
evidence in the claims file shows, or fails to show, with respect to each claim.      See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is   an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran essentially contends that he developed hypertension and diabetes mellitus within the first post-service year, that all three claimed disabilities were causally related to service, or that they are causally related to his service-connected posttraumatic stress disorder (PTSD).  The Veteran provided statements and testimony to the effect that blood pressure or blood sugar readings in service or       in years following service supported his claims, and that his claimed disabilities were impacted by his PTSD.  

In determining the weight to be assigned to evidence, credibility can be affected     by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996).

As an initial matter, the Board notes that the Veteran has been diagnosed during    the course of the appeal with diabetes mellitus, multiple heart conditions, and hypertension.  Accordingly, the first criterion - a current disability - for establishing service connection has been met for each of the appealed claims.  The question becomes whether these conditions are related to service or service-connected disability.

Service treatment and examination records fail to show the presence of diabetes mellitus, a heart condition, or hypertension.  

Upon VA endocrine examination in September 2010, the examiner noted a history of diabetes mellitus diagnosed in 1993 with insulin treatment in 1996. The examiner opined that it was at least as likely as not that the Veteran's diabetes mellitus was related to service, and provided as a rationale that the examiner had many years of experience.  

Upon a VA diabetes examination in June 2011, the examiner noted that the Veteran was released from active service in July 1991 but remained in the National Guard until 1994.  The examiner observed that the Veteran had blood sugars done sporadically at the VA medical center in 1991 through 2000, and that these had been random and nonfasting and conducted in the afternoon, and had essentially normal findings.  The examiner noted blood glucose readings included one elevated reading of 117 in March 1992, but observed that this may or may not have been conducted when the Veteran was fasting, and did not serve to diagnose diabetes mellitus.  The examiner noted that other blood glucose readings included 85 in September 1996, 97 August 1999, 112 in December 2000, 131 in March 2001,     and 113 in October 2001.  The March 2001 reading was also high.  The examiner observed that the Veteran had several elevated blood sugar readings during a February 1997 cardiac hospitalization, but without diabetes mellitus diagnosed at that time.  The examiner added, "Cardiac bypass surgery is a tremendous stressor for patients prone to diabetes mellitus, [and] if his sugars were normal enough not to require diagnosis or treatment of [diabetes mellitus] at that time, I would think diabetes mellitus was not present at that time."  The examiner further observed    that the Veteran was diagnosed with diabetes mellitus in October 2001 at the Wilmington VA Medical Center (VAMC) based on elevated blood sugar readings and elevated A1C.  

Based on this careful review of the record and rationales provided, including the observation that diabetes mellitus was not diagnosed until 10 years after service separation, the examiner concluded that diabetes mellitus was not related to service. 

The Board has carefully reviewed the VA examinations from September 2010 and June 2011 and the balance of the evidentiary record.  Most pertinently, the Board observes that the medical record is supportive of the June 2011 examination and     is not supportive of the Veteran's self-reported history provided to the September 2010 examiner that diabetes mellitus was diagnosed within the first year following 
service.  As the 2010 VA examiner's opinion was based upon the Veteran's unsubstantiated report of the onset of diabetes in 1993 and contained no real rationale for the conclusion other than the examiner's qualifications to provide medical opinions, the Board assigns the September 2010 opinion little, if any probative weight.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board       can consider and weigh against contrary opinions.").  

Conversely, the opinion from the June 2011 examiner is consistent with the other evidence of record, and contained an adequate rationale for the conclusion reached.  Accordingly, that opinion is afforded great probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, 
fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion).  
 
In sum, the Board finds that the competent, credible and probative evidence preponderates against diabetes mellitus having developed in service, having been manifested to a compensable degree within one year following discharge from service, or otherwise being causally related to service.  

Upon VA heart disease examination in September 2010, the examiner noted the Veteran's history of heart disease beginning with a myocardial infarction in 1995, treated with two vessel stenting, followed by progressive heart disease over the years with exertional shortness of breath despite coronary artery bypass graft (CABG) and other subsequent treatments.  The examiner noted diagnoses including heart wall defects, enlarged left ventricle, and septal hypokinesis.  The Veteran reported a history of work in construction until retirement in 1992.  The examiner opined that it was at least as likely as not that the Veteran's hypertension was related to service, based on the Veteran's self-report that the hypertension was diagnosed and treatment was begun within the first year following his service separation in July 1991.  The September 2010 examiner opined that it was not at least as likely as not that the Veteran's ischemic heart disease was due to service since it was diagnosed in 1995, four years following the Veteran's service separation.  

The Veteran underwent another VA heart disease examination in June 2011 in which the Veteran's medical records were more carefully reviewed.  That examiner observed three blood pressure readings that were obtained during the Veteran's second period of service and in the year subsequent.  These included one reading    of 139/78 mmHg, one in March 1992 of 140/90 mmHg, and one in April 1991 of 145/85 mmHg.  The examiner noted that only one of these blood pressure readings was considered abnormal, and that three different readings at different times were required to establish the presence of hypertension.  The examiner on these bases concluded that it was not at least as likely as not that the Veteran had hypertension with onset in service or within the first post-service year.  

The June 2011 examiner identified risk factors of the Veteran's heart disease, which included hyperlipidemia, smoking history, family history, diabetes mellitus, and hypertension.  The examiner also identified as a risk factor chronic obstructive pulmonary disease (COPD) due to smoking, with moderate COPD shown upon pulmonary function testing in 2007.  

Additionally, in January 2016 the Veteran underwent another VA examination. In a February 2016 addendum opinion, the VA examiner addressed the Board's question as to whether the opinion regarding the post-service onset of hypertension would change if the blood pressure reading in April 1991 was read as 195/85 rather than 145/85.  The examiner explained, "An isolated blood pressure reading has, in my opinion, little significance."  He added that some people have "labile" blood pressures which elevate readily but "do not represent sustained [h]ypertension." The examiner also explained that there is a reason that multiple blood pressure readings are taken    for a diagnosis to be established, because blood pressure can be elevated in a single instance for a variety of reasons that are not hypertension, including the circumstances of the patient and the accuracy of the reading.  The examiner thus concluded that the single blood pressure reading in April 1991, even if more elevated as stated, would not represent hypertension, or,  as the examiner stated, 'does not "make a diagnosis."' 

Upon review of the opinions, the Board notes that the September 2010 VA examiner relied on a medical history provided by the Veteran of hypertension diagnosed in    the first post-service year, to arrive at his opinion that hypertension was diagnosed within the first post-service year. That history is contradicted by the medical record, which includes substantially normal blood pressure readings and does not diagnose hypertension.  The June 2011 examiner, based on careful review of the medical record, came to the opposite conclusion. The 2011 opinion is consistent with the  2016 VA examiner's opinion.  The Board finds the September 2010 VA examination opinion as to the onset of hypertension to be based on inaccurate facts and hence non-probative.  See Stefl, supra. The Board finds the Veteran's history of hypertension diagnosed within the first post-service year to be non-credible as contradicted by the objective medical record.  

Conversely, the opinion from the June 2011 examiner is consistent with the other probative evidence of record to include the medical opinion from the 2016 VA examiner, and contained an adequate rationale for the conclusions reached. Thus, that opinion is afforded great probative weight. See Nieves-Rodriguez, supra. 

In sum, the preponderance of the competent and probative evidence is against hypertension having developed in service or being present within the first post-service year, or otherwise being causally related to service.  The Board similarly finds that the preponderance of the competent and probative evidence is against the Veteran's heart conditions developing in service or within the first post-service year or causally related to service. 

Turning to the question of whether the Veteran's conditions are secondary to the service-connected PTSD, the Board in April 2014 remanded the case for medical addendum opinions.  

The VA examiner in January 2016 noted a history of coronary artery disease (CAD) with admission to PRMC Salisbury twice in 1996, with placement of two stents, followed by additional treatment, hospitalization, and surgical interventions       over the years for cardiac conditions including CAD and mitral valve defects.  Recognized heart conditions included ischemic and non-ischemic heart disease, 
arrhythmias, and valvular disease, post-operative, atrial fibrillation, cardiomyopathy, and congestive heart failure.  Of these, the examiner considered the CAD, congestive heart failure, CABG, and stent placement as qualifying under the definition of ischemic heart disease.  The examiner opined that the Veteran's CAD was the underlying cause of the Veteran's heart disease with the exception of the mitral    valve disease, which the examiner opined was due to a structural malformation.




The January 2016 VA examiner noted that the Veteran reported that he was unaware when his hypertension was diagnosed, except to assert that he believed this occurred "during my hospitalization," without specifying further.  The examiner noted that hypertension was listed as a diagnosis in records of two private hospitalizations in 2011.  

The VA examiner in January 2016 effectively opined that the Veteran's claimed diabetes mellitus, heart condition, and hypertension would not be caused or aggravated by his service-connected PTSD, explaining that the Veteran's heart condition would be affected by infection, inflammation, ischemia, toxins, or trauma, but not by PTSD symptoms; that the Veteran's hypertension would be worsened by salt consumption, angiotensin issues, obesity, tobacco, or other substance abuse,   but not by symptoms of PTSD; and that the Veteran's diabetes mellitus could be worsened by dietary factors, infection, or medication non-compliance, but not by PTSD.  
      
The Board find that the opinions of the January 2016 examiner are well-supported by adequate rationale and the balance of the evidence of record, to the effect that   the Veteran's claimed disabilities of diabetes mellitus, heart conditions, and hypertension were not caused or aggravated by his service-connected PTSD. The Board does not find competent contrary evidence that contradicts or outweighs these opinions.  Thus, the Board finds that the preponderance of the evidence is against secondary service connection for the claimed disabilities based on their being caused or aggravated by PTSD.  

While the Veteran believes that his claimed disabilities are related to service or to service-connected PTSD, the Veteran has not shown that he has specialized training sufficient to render such an opinion.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis).  In this regard, the diagnosis and etiology of the claimed diabetes mellitus, heart condition, and hypertension are matters not capable 

of lay observation, and require medical expertise to determine.  Accordingly, his opinion as to the diagnosis or etiology of these conditions is not competent medical evidence.  The Board finds the opinions of the VA examiners relied upon in the Board's decision to be significantly more probative than the Veteran's lay assertions.

As a final matter, there is no indication that the Veteran served in Vietnam or Korea, and presumption of herbicide agents exposure on such bases is thus not applicable.  Rather, the Veteran's DD214 from his first period of service indicates foreign service in Europe. The Veteran has also not alleged and the record does not show that the Veteran was by other means exposed to herbicide agents in service.  Hence, service connection for diabetes mellitus or a heart condition based on herbicide agents (e.g., Agent Orange) exposure is not warranted.  See 38 C.F.R. § 3.307(a)(6), 3.309(d) (2017) (presumptive service connection based on herbicide agents exposure).   

Thus, the weight of competent and credible evidence is against the claims for service connection for diabetes mellitus, a heart condition, and hypertension, on      all the bases asserted, including direct, first-year-post-service presumptive, and as secondary to PTSD based on either causation or aggravation.  Service connection is thus not warranted for any of the claimed conditions.  

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 the Veteran's claim, that doctrine is not applicable in the instant appeal.     See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).




	(CONTINUED ON NEXT PAGE)



ORDER

Service connection for diabetes mellitus is denied.

Service connection for a heart condition is denied.

Service connection for hypertension is denied.




____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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