HYPERTENSION

Summary

The veteran, who served in the United States Marine Corps from November 1961 to October 1964, appeals the denial of service connection for hypertension and type II diabetes mellitus. The veteran claims these conditions are related to service, specifically due to exposure to contaminated water at Camp Lejeune, and alternatively, that they are secondary to each other. The Board noted the veteran's service at Camp Lejeune during the relevant period, conceding exposure to contaminated water. However, the Board found the evidence weighed against service connection. VA nexus opinions from March 2023 and February 2024 concluded that it was less likely than not that the veteran's hypertension and type II diabetes mellitus were caused by service or Camp Lejeune exposure. These opinions cited the veteran's obesity, positive family history of diabetes, and the absence of symptoms for over 30 years post-service as contributing factors. The Board found these VA opinions more probative than private opinions, which did not adequately address these risk factors or the long latency period. The Board also found the veteran's lay evidence and submitted medical literature to be of minimal probative value. Consequently, service connection for both hypertension and type II diabetes mellitus was denied.

Rationale

VA nexus opinion found less likely than not related to service; Obesity and family history identified as risk factors; No characteristic manifestations during service or within one year of separation

Full Decision Text

Citation Nr: 24020368
Decision Date: 05/16/24	Archive Date: 05/16/24

DOCKET NO. 15-43 938
DATE: May 16, 2024

ORDER

Entitlement to service connection for hypertension, to include as due to contaminated water at Camp LeJeune and/or secondary to type II diabetes mellitus is denied.

Entitlement to service connection for type II diabetes mellitus to include as due to contaminated water at Camp LeJeune and/or secondary to hypertension, is denied.

FINDINGS OF FACT

1. Hypertension did not have onset during active service and was not caused by active service; hypertension did not manifest within one year of separation from active service.

2. Type II diabetes mellitus did not have onset during active service and was not caused by active service; type II diabetes mellitus did not manifest within one year of separation from active service.

CONCLUSIONS OF LAW

1. The criteria for service connection for hypertension to include as secondary to type II diabetes mellitus are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 

2. The criteria for service connection for type II diabetes mellitus to include as secondary to hypertension are not met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from November 1961 to October 1964. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

In May 2019 the Veteran testified before a Veterans Law Judge (VLJ) at a virtual Board hearing.  A transcript of the hearing is of record.  In June 2021, the Board sent the Veteran a letter that explained that the Veteran had a right to request another Board hearing because the VLJ who conducted the Veteran's May 2019 hearing was no longer available to participate in deciding his case.  In July 2021 the Veteran indicated that he did not want another hearing.

In an August 2019 decision the Board denied the Veteran's service connection claim for hypertension and remanded his claim for type II diabetes mellitus.  The Veteran appealed the Board's August 2019 decision to the United States Court of Appeals for Veterans Claims (Court).  In January 2021, the Court issued an Order vacating the portion of the August 2019 Board decision denying service connection for hypertension and remanding the matter for readjudication consistent with instructions outlined in a Joint Motion for Partial Remand (JMPR) by the parties.  In the JMPR, the Board's denial of the hypertension claim was vacated as the issue of service connection for hypertension was an inextricably intertwined issue with the issue of service connection for type II diabetes mellitus that was remanded.  

The matter was most recently remanded in February 2024 for evidentiary development, in particular for medical opinions to be obtained as to the etiology of the Veteran's hypertension and type II diabetes mellitus.  In rendering the opinions, the examiner was to address the Veteran's exposure to contaminated water during his service at Camp Lejeune and therefore his toxic exposure risk activity (TERA); his October 1964 separation examination indicating his blood pressure was 122/86; articles submitted by the Veteran in March 2022 in support of his claims; and positive nexus opinions submitted by the Veteran that link his diabetes to exposure to contaminated water at Camp Lejeune and also linking his hypertension to his type II diabetes.  Pursuant to the February 2024 remand, VA nexus opinions as to the etiology of the Veteran's hypertension and type II diabetes mellitus were obtained and as will be discussed below, the Board finds that these opinions are adequate for evaluation purposes and in substantial compliance with the February 2024 remand instructions.  

The Veteran attempted to opt this appeal into the modernized review system, also known as the Appeals Modernization Act (AMA) system, by filing a VA Form 10182 on May 24, 2023, which is more than 60 days after the issuance of a March 16, 2023 supplemental statement of the case (SSOC).  Because the VA Form 10182 was not received within 
 Pursuant to the February 2024 remand, VA nexus opinions as to the etiology of the Veteran's hypertension and type II diabetes mellitus were obtained and as will be discussed below, the Board finds that these opinions are adequate for evaluation purposes and in substantial compliance with the February 2024 remand instructions.  

The Veteran attempted to opt this appeal into the modernized review system, also known as the Appeals Modernization Act (AMA) system, by filing a VA Form 10182 on May 24, 2023, which is more than 60 days after the issuance of a March 16, 2023 supplemental statement of the case (SSOC).  Because the VA Form 10182 was not received within 60 days of the SSOC, it is untimely, and the appeal remains in the legacy system.  He has not since attempted to opt in to the AMA system.

Service connection for hypertension and type II diabetes mellitus

The Veteran contends he has hypertension and type II diabetes mellitus that are related to service, to include as due to exposure to contaminated water during his service at Camp Lejeune.  See, e.g., a May 2019 Board hearing transcript, page 2.  He alternatively contends that the hypertension and type II diabetes mellitus are secondary to each other.  See, e.g., a private medical opinion from Dr. R.V.. dated April 2015.    

Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C. § 1110 (wartime service), 1131 (peacetime service).  To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

For certain chronic disease, including hypertension and type II diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2022).

With chronic disease shown as such in service (or within the presumptive period under § 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.  This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date.  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 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. § 3.303(b).

Pertinent to this case, effective March 14, 2017, a veteran or former reservist or member of the National Guard who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service.  38 C.F.R. § 3.307(a)(7).  If a Veteran served on Camp Lejeune during the time frame specified, then the diseases of kidney cancer, liver
 this case, effective March 14, 2017, a veteran or former reservist or member of the National Guard who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953 and ending on December 31, 1987 shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service.  38 C.F.R. § 3.307(a)(7).  If a Veteran served on Camp Lejeune during the time frame specified, then the diseases of kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service-connected even though there is no record of such disease during service.  38 C.F.R. § 3.309(f).

In addition to the legal criteria outlined above, 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b).

Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain.  Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted).  Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability.  Id. at 1364.  For example, secondary aggravation may be established where the natural progression of the non-service-connected disability could have been arrested or improved but for the service-connected disability.  Id.

The current medical evidence documents findings of hypertension and type II diabetes mellitus.  See, e.g., VA examination reports dated March 2023 for hypertension and diabetes mellitus.

The Veteran's service treatment records are absent complaints of or treatment for hypertension or type II diabetes mellitus though the Board notes a blood pressure reading of 122/86 on the Veteran's October 1964 separation examination.  Regarding the Veteran's report of exposure to contaminated water during service at Camp Lejeune, the aforementioned current hypertension and type II diabetes mellitus are not presumed to be related to his exposure to contaminated water at Camp Lejeune during his service.  38 C.F.R. § 3.309.  Nevertheless, the Veteran's personnel records indicate that he was stationed at Camp Lejeune during the relevant time period.  As a result, exposure to contaminated water is conceded. 

The absence of a disease from the presumptive list does not preclude a veteran from otherwise proving that his disability resulted from exposure to contaminated water at Camp Lejeune.  See Combee v. Brown, 34 F. 3d 1039, 1044 (Fed. Cir. 1994).  Accordingly, the Board will still consider whether entitlement to service connection can be granted on any other basis.  

The Board has carefully evaluated the evidence and finds that the evidence of record is against a finding that the Veteran has hypertension and type II diabetes mellitus that are related to his service.  

Specifically, VA medical opinions were obtained in February 2024 as to the etiology of the Veteran's hypertension and type II diabetes mellitus.  The examiner noted the Veteran's report of exposure to contaminated water during service at Camp Lejeune.  After review of the Veteran's medical history, the VA examiner concluded that it is less likely than not that the Veteran's hypertension and type II diabetes mellitus were caused by service to include exposure to contaminated water during service at Camp Lejeune.  The examiner's rationale for his conclusions were based on his review of medical literature that did not support a finding that the Veteran's exposure to contaminated water at Camp Lejeune would cause the Veteran's current hypertension and diabetes.  Moreover, the examiner opined that while the Veteran began developing hypertension during service, such was due to his being overweight which has not been linked to any service-connected disability.  Also, the examiner noted that the Veteran was not diabetic at that time.  Further, the examiner reported that the Veteran is currently obese which is more likely the reason for his continued hypertension and being diabetic.  The Board adds that examiners reported in September 2015 and October 2021 VA nexus opinions that in addition to obesity being a risk factor for
's rationale for his conclusions were based on his review of medical literature that did not support a finding that the Veteran's exposure to contaminated water at Camp Lejeune would cause the Veteran's current hypertension and diabetes.  Moreover, the examiner opined that while the Veteran began developing hypertension during service, such was due to his being overweight which has not been linked to any service-connected disability.  Also, the examiner noted that the Veteran was not diabetic at that time.  Further, the examiner reported that the Veteran is currently obese which is more likely the reason for his continued hypertension and being diabetic.  The Board adds that examiners reported in September 2015 and October 2021 VA nexus opinions that in addition to obesity being a risk factor for the Veteran's diabetes, his sister and brother also have diabetes, and positive family history is also a risk factor for the development of diabetes.  

The February 2024 VA examiner's opinions were based on upon thorough review of the record and analysis of the Veteran's entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"].  Additionally, the VA examiner's opinions are consistent with the Veteran's documented medical history, which is absent any report of symptomatology consistent with a hypertension and type II diabetes mellitus not due to obesity for more than 30 years after active service.  The examiner also noted the Veteran's in-service exposure to contaminated water at Camp Lejeune which was determined to be less likely than not related to the current hypertension and type II diabetes mellitus.  

The Board acknowledges private medical opinions submitted by Dr. R.V., Dr. N.W., and Dr. J.D. in April 2015, June 2015, and September 2015, respectively that indicate the Veteran's current diabetes is related to in-service exposure to contaminated water during service at Camp Lejeune.  Crucially, however, these providers do not address in their positive nexus opinion reports the Veteran's history of obesity and positive family history of diabetes as risk factors for the Veteran's current diabetes, nor do they address the absence of diabetes symptoms for more than 30 years after separation from service.  As such, the Board finds that the opinions submitted by Dr. R.V., Dr. N.W., and Dr. J.D. are of minimal probative value and outweighed by the February 2024 VA medical opinion as well as the findings of the April 2015 and October 2021 VA medical opinions that address the Veteran's obesity and positive family history for development of diabetes as risk factors for his current diabetes.  

The Board also acknowledges medical literature submitted by the Veteran in March 2022 that indicates a link between exposure to contaminated water at Camp Lejeune and the development of diabetes.  The Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence.  See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses].  However, the research submitted by the Veteran is of a general nature and does not contain any information or analysis specific to the Veteran's case.  Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  

As discussed in detail above, the February 2024 VA examiner reviewed the Veteran's medical history and considered his complaints and thereafter concluded that the Veteran does not have diabetes that is related to service.  Moreover, the VA medical opinions dated April 2015 and October 2021 that consider the Veteran's obesity and positive family history for development of diabetes as risk factors for the Veteran's current diabetes are also of great probative value in this regard.  The Board has therefore placed great probative value on the findings of the VA examiners.  As such, the research submitted by the Veteran is of little or no probative value, and, to the extent that there is any probative value, is greatly outweighed by the examiner's opinions.

Additionally, the record includes a copy of a March 2011 Board Decision submitted for consideration that awarded service connection for diabetes mellitus as due to exposure
 have diabetes that is related to service.  Moreover, the VA medical opinions dated April 2015 and October 2021 that consider the Veteran's obesity and positive family history for development of diabetes as risk factors for the Veteran's current diabetes are also of great probative value in this regard.  The Board has therefore placed great probative value on the findings of the VA examiners.  As such, the research submitted by the Veteran is of little or no probative value, and, to the extent that there is any probative value, is greatly outweighed by the examiner's opinions.

Additionally, the record includes a copy of a March 2011 Board Decision submitted for consideration that awarded service connection for diabetes mellitus as due to exposure to trichloroethylene (TCE), a chemical found in contaminated water at Camp Lejeune during the Veteran's period of service.  Prior Board decisions are not precedential or binding on other Veterans.  See 38 C.F.R. § 20.1303; see also Lynch v. Gober, 11 Vet. App. 22, 27 (1997), vacated on other grounds sub nom. Lynch v. West, 178 F.3d 1312 (Fed. Cir. 1998); Hillyard v. Derwinski, 1 Vet. App. 349, 351 (1999).  Prior decisions in other appeals "may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law." See 38 C.F.R. § 20.1303; see also Percy v. Shinseki, 23 Vet. App. 37, 44 (2009) ("The word 'may' clearly connotes discretion") (citing Fogerty v. Fantasy Inc., 510 U.S. 517, 533 (1994)); see also Hudgens v. Gibson, 26 Vet. App. 558, 562 at n.5 (2014) (citing 57 Fed. Reg. 4088, 4103 (Feb. 3, 1992) "[U]niformity will be achieved on important questions through precedent decisions of the United States Court of Veterans Appeals.").  Therefore, the Board affords the March 2011 Board Decision no probative weight in the current appeal.  As discussed above, VA medical opinions have been obtained that consider this Veteran's medical history and the claimed conditions, and they are more persuasive concerning the facts in his appeal than opinions provided for other Veterans' claims. 

In relevant part, 38 U.S.C. § 1154(a) (2012) 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).  "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, (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).

The Board observes the Veteran's statements of record indicating he has hypertension and type II diabetes mellitus related to service.  To the extent the Veteran asserts that he has hypertension and type II diabetes mellitus that are related to his service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record).  He is also competent to report that he has had symptoms since service.  However, symptoms related to hypertension and type II diabetes mellitus that were not due to being overweight were not noted during service.  Indeed, inasmuch as the October 1964 separation examination showed no finding of hypertension or type II diabetes mellitus that were not due to being overweight, the Veteran did not have characteristic manifestations sufficient to identify the chronic disease entities, hypertension and type II diabetes mellitus, during service or within one year of separation.  38 C.F.R. § 3.303(b).  The Board observes that the Veteran has reported longstanding symptoms related to his hypertension and type II diabetes mellitus.  The Board notes that the Veteran is competent to report his symptoms both current and past.  However, this lay evidence is inconsistent with the findings upon separation from service.  Further, the in-service examination is more credible and more probative than his after-the-fact lay assertions.  The Board concludes that the objective findings
 finding of hypertension or type II diabetes mellitus that were not due to being overweight, the Veteran did not have characteristic manifestations sufficient to identify the chronic disease entities, hypertension and type II diabetes mellitus, during service or within one year of separation.  38 C.F.R. § 3.303(b).  The Board observes that the Veteran has reported longstanding symptoms related to his hypertension and type II diabetes mellitus.  The Board notes that the Veteran is competent to report his symptoms both current and past.  However, this lay evidence is inconsistent with the findings upon separation from service.  Further, the in-service examination is more credible and more probative than his after-the-fact lay assertions.  The Board concludes that the objective findings are far more probative and credible than the lay evidence submitted in support of a claim for benefits.  The Board must find that the Veteran's statements indicating a nexus between his hypertension and type II diabetes mellitus and service to be of minimal probative value and outweighed by the VA opinion, prepared by a skilled neutral professional.

The Board also notes that as discussed above, the Veteran has indicated his hypertension and type II diabetes mellitus are secondary to each other.  However, service connection is not in effect for either disability; as such, service connection on a secondary basis is not warranted for either disability.  

In view of the above, the weight of the evidence is against the claims for service connection for hypertension and type II diabetes mellitus.  Accordingly, the benefits sought on appeal are denied.

 

 

T. Raymond

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Arif Syed, 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.