HYPERTENSION

HARVEY P. ROBERTS · 2023 · Case ID: A23023055

DENIED

Summary

The Veteran, a Veteran who served from January 1987 to September 1989, appeals the denial of service connection for hypertension and obstructive sleep apnea, both claimed as secondary to service-connected diabetes mellitus. The Board reviewed the evidence, including multiple VA examinations and a private treatment letter. For hypertension, the Board found that while the Veteran has a current diagnosis, the evidence persuasively weighed against a service connection or a secondary connection to diabetes. VA examinations in May 2008 and January 2019 were found more probative than a July 2008 private opinion, which was deemed speculative. The January 2019 VA examiner concluded that hypertension was less likely than not proximately due to or the result of diabetes mellitus, citing a lack of evidence for aggravation beyond natural progression. For sleep apnea, the Board also found the evidence weighed against a secondary connection to diabetes. VA examinations in January 2016 and January 2019 opined that sleep apnea was less likely than not proximately due to diabetes mellitus, noting that diabetes does not directly cause sleep apnea and that the Veteran's obesity, potentially linked to diabetes, was not shown to be caused by a sedentary lifestyle due to diabetes. The Board concluded that the weight of the evidence was against both claims, finding no approximate balance of evidence to resolve in the Veteran's favor. Service connection for both hypertension and obstructive sleep apnea was denied.

Rationale

Weight of evidence against service connection; Private opinion found speculative; VA opinions found more probative

Special Benefit

NO SPECIAL BENEFIT

Docket No.

190927-34803

Full Decision Text

Citation Nr: A23023055
Decision Date: 09/05/23 Archive Date: 09/05/23

DOCKET NO. 190927-34803
DATE: September 5, 2023

ORDER

Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus, is denied.

Entitlement to service connection for obstructive sleep apnea, claimed as secondary to service-connected diabetes mellitus, is denied.

FINDINGS OF FACT

1. The Veteran's hypertension is not secondary to service-connected diabetes mellitus, and is not otherwise related to an event, injury, or disease during service.

2. The Veteran's obstructive sleep apnea is not secondary to service-connected diabetes mellitus, and is not otherwise related to an event, injury, or disease during service.

CONCLUSIONS OF LAW

1. The criteria for service connection for hypertension, to include as due to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for service connection for obstructive sleep apnea, to include as due to a service-connected disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1987 to September 1989.?

This matter comes to the Board on appeal from a rating decision dated in February 2019 by the Department of Veteran Affairs (VA) Regional Office (RO).? ?In a September 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket.? Therefore, the Board may only consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal, and any evidence submitted at the hearing or within 90?days following the hearing.? 38 C.F.R. §?20.302(a).??

In March 2021 the Veteran, through the representative, withdrew the request for a hearing.

1. Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus

The Veteran asserts that entitlement to service connection for hypertension is warranted because the claimed disability was caused or aggravated by service-connected diabetes mellitus.

To establish a service connection for a 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004).

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

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). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. 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 (1998).

A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The question for the Board is whether the Veteran has hypertension that is due to service, manifested to a compensable degree
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 (1998).

The question for the Board is whether the Veteran has hypertension that is due to service, manifested to a compensable degree within one year following separation from service, or is proximately due to or the result of or is aggravated beyond its natural progress by diabetes mellitus.

The Board concludes that, while the Veteran has a current disability, the evidence of record persuasively weighs against finding that the Veteran's hypertension is related to service, manifested within one year following separation from service, or is proximately due to or the result of or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(a).

In a September 1989 dental questionnaire, the Veteran denied having hypertension. The service medical records do not show any complaint of or treatment for hypertension.

The Veteran was diagnosed with hypertension in September 2004. VA medical records show that the Veteran has received ongoing treatment since that time.

In a October 2007 VA examination, related to the Veteran's diabetes mellitus increased rating claim at the time, it was noted that the Veteran was diagnosed with hypertension "six months ago." The examiner stated that there was "no evidence of end-organ damage, this it is not the result of or caused by the diabetes."

In a May 2008 VA examination, the Veteran denied any side effects from hypertension and reported being seen by a primary care physician three times per year for follow-up treatment. There were no signs or history of coronary artery disease or peripheral vascular disease. Tests for renal dysfunction and renal insufficiency were negative. The examiner noted a diagnosis of "benign essential hypertension, oral agent, controlled, not related to diabetes diagnosis, normal renal function." No further rationale was provided.

In a July 2008 private treatment letter, Dr. J.K.T. noted that the Veteran had been followed by their office for hypertension and diabetes mellitus. It was concluded "that these are closely related and the effects of diabetes on the blood vessels may elevate the blood pressure."

The July 2008 private opinion findings that hypertension and diabetes mellitus is "closely related" is legally insufficient to support a service connection claim. The examiner opined only that the effects of diabetes "may" elevate blood pressure, which is speculative. Medical opinions raising only a speculative possibility of a medical etiology are insufficient to establish a relationship to service. McLendon v. Nicolson, 20 Vet. App. 79 (2000); Beausoleil v. Brown, 8 Vet App. 459 (1996) (general and inconclusive statement about the possibility of a link between current disability and service injury is insufficient.); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Therefore, the July 2008 private medical opinion is of little probative value.

In a July 2011 statement, the Veteran, through the representative, challenged the May 2008 VA examination as deficient because it was not signed by the examiner. However, the report in the Veteran's file was signed electronically and in ink by the examining nurse practitioner.

In an August 2011 statement the Veteran asserted that a doctor stated that there is a link between their hypertension and diabetes.

In a January 2019 VA examination, the Veteran reported that hypertension medication was increased and denied any complications. The examiner opined that hypertension was less likely than not proximately due to or the result of the service-connected condition. The examiner noted VA primary care physician notes dating from June 2017 showed that the Veteran's hypertension condition and blood pressure was controlled. VA urine random albumin/creatine levels provided for review from December 2002 to June 2019 were within normal limits and were not consistent with albuminuria. It was noted that lab work findings documented normal renal or kidney function and did not meet the criteria for diabetic nephropathy. Therefore, the examiner concluded that "there is no medical, clinical, or diagnostic evidence to support the contention that the veteran's hypertension was aggravated beyond
and denied any complications. The examiner opined that hypertension was less likely than not proximately due to or the result of the service-connected condition. The examiner noted VA primary care physician notes dating from June 2017 showed that the Veteran's hypertension condition and blood pressure was controlled. VA urine random albumin/creatine levels provided for review from December 2002 to June 2019 were within normal limits and were not consistent with albuminuria. It was noted that lab work findings documented normal renal or kidney function and did not meet the criteria for diabetic nephropathy. Therefore, the examiner concluded that "there is no medical, clinical, or diagnostic evidence to support the contention that the veteran's hypertension was aggravated beyond its natural progression by" diabetes mellitus.

The May 2008 and January 2019 medical opinions are more probative in value than the July 2008 private medical opinion because they consider the Veteran's overall medical history. Their findings were supported by the medical evidence of record over periods of time to support their conclusions. Moreover, reference to several medical notes and medical literature in support of their conclusions make these opinions legally sound for adjudication.

The Veteran believes the hypertension disability is proximately due to or the result of/aggravated beyond its natural progression by a service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that they have the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428 (2011).

Consequently, the Board gives more probative weight to the May 2008 and July 2019 medical evidence of record.

The Board finds that the weight of the evidence is against a finding that hypertension is related to service, manifested to a compensable degree during service, is due to service-connected diabetes mellitus, or is aggravated by diabetes mellitus. Accordingly, the Board finds that the evidence is not in approximate balance and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the appeal must be denied.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of hypertension and obstructive sleep apnea, that evidence cannot be considered in this decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. 38 C.F.R. §3.2501. Specific instructions for filing a Supplemental Claim are included with this decision.

2. Entitlement to service connection for sleep apnea, claimed as secondary to service-connected diabetes mellitus

The Veteran contends that entitlement to sleep apnea is warranted because the claimed disability was caused or aggravated by service-connected diabetes mellitus.

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). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1)
.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

The question for the Board is whether the Veteran has sleep apnea that is related to service or is proximately due to or the result of, or is aggravated beyond its natural progress, by a service-connected disability. Specifically, the Veteran asserts that diabetes mellitus caused obesity which later caused the development of sleep apnea.

In a January 2016 VA examination, the examiner noted an April 2015 diagnosis of sleep apnea. On examination the Veteran did not have any signs or symptoms attributable to sleep apnea. The examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of service-connected diabetes mellitus. The rationale provided was that diabetes mellitus is not a known or recognized cause of sleep apnea. The examiner provided medical literature defining sleep apnea as an occurrence where the muscles in the back of the throat relax causing the person's airways to narrow or close while breathing. Noted risk factors for sleep apnea included excess weight, neck circumference, a narrowed airway, being older, family history, smoking, use of alcohol, sedative or tranquilizers, and nasal congestion.

In a January 2019 VA examination, the Veteran reported "restless sleep" and no longer using a CPAP machine due to lack of comfort. The Veteran did not have any findings, signs, or symptoms attributable to sleep apnea. The examiner opined that the Veteran's sleep apnea was less likely than not proximately due to or the result of diabetes mellitus. The examiner explained that the medical records showed an increase in the Veteran's body mass index. The examiner noted that medical evidence showed the Veteran's diabetes mellitus was controlled. "Records provided for review are silent for any required regulation of his activities due to his diabetes mellitus type I condition at this time." Medications, such as insulin, were listed as a common cause of weight gain. Nonetheless, the examiner opined that there was no medical, clinical, or significant research evidence to support the contention that the claimed sleep apnea was caused or aggravated by the service-connected diabetes mellitus.

Regarding the Veteran's contention that obesity was caused by the diabetes mellitus disability, the January 2019 examiner concluded that "the records provided for review are silent for any medical or clinical evidence ... that the diabetes mellitus and peripheral neuropathy lead to any inactivity or that he was told to limit his activity due to either of these conditions." The examiner emphasized that there was no evidence provided that diabetes led to a sedentary lifestyle, which is listed as a cause of obesity. Therefore, the Veteran's sleep apnea was found to be multifactorial and as likely as not would have occurred despite the diagnosed diabetes mellitus.

The Board concludes that, while the Veteran has a current disability, the evidence of record persuasively weighs against finding that the Veteran's sleep apnea is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(a).

The Veteran believes the claimed sleep apnea disability is proximately due to, or the result of, or aggravated beyond its natural progression by a service-connected disability. The Veteran in this case is not competent to provide an etiology opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that the Veteran has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428 (2011).

Consequently, the Board gives more probative weight to the January 2016 and January 2019 medical opinions.

Accordingly, the Board finds that the weight of the evidence is against a finding that sleep apnea is related to service, or is due to, the result of, caused by, or aggravated by service-connected diabetes mellitus. The Board also finds that the weight of the evidence is against a finding that diabetes mellitus caused obesity which caused sleep apnea. The Board finds that the evidence is not in approximate balance and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the appeal must be denied.

Harvey P. Roberts

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Cross, 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.

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