HYPERTENSION

Summary

The Veteran served from September 1973 to August 1976. He appeals the denial of service connection for a heart condition, type II diabetes mellitus, and hypertension. The Board found no probative evidence linking these conditions to his service. The separation examination in August 1976 was normal for his heart, vascular, and endocrine systems, and he denied any prior issues with blood pressure or heart trouble. His service treatment records were also unremarkable for these conditions. Post-service records showed diagnoses of type II diabetes mellitus in June 2001, a heart condition in December 2001, and hypertension in February 2009, with no suggestion of prior service connection. The Board noted that a prolonged period after service without relevant complaints, as seen here, can indicate no in-service injury. The Board also found that the Veteran, while competent to report symptoms, lacked the medical expertise to establish a service connection for these complex conditions. The Board concluded that the evidence did not meet the standards for service connection, as there was no credible indication of a relationship between these diseases and his military service, and therefore, VA examinations were not required. The claims for these conditions were denied. The claim for arthritis, however, was remanded for further development due to deficiencies in a prior VA examination. The prior examination impermissibly equated "chronicity of care" with "continuity of symptoms" and relied solely on the time lapse since service, which is insufficient grounds for denial. A new opinion is required to address the nature and etiology of his arthritis, particularly in his knees, and its relation to service, ensuring continuity of symptoms is properly considered.

Rationale

No probative evidence of service connection; Normal separation examination findings; Unremarkable service treatment records; Delayed post-service diagnosis

Full Decision Text

Citation Nr: 22069457
Decision Date: 12/16/22	Archive Date: 12/16/22

DOCKET NO. 16-62 408
DATE: December 16, 2022

ORDER

Entitlement to service connection for a heart condition is denied.

Entitlement to service connection for type II diabetes mellitus is denied.

Entitlement to service connection for hypertension, including secondary to a heart condition, is denied.

REMANDED

Entitlement to service connection for arthritis is remanded.

FINDING OF FACT

The Veteran's heart condition, type II diabetes mellitus, and hypertension did not initially manifest during his service or within one year of his separation from service and are not otherwise shown to be related or attributable to his service.

CONCLUSION OF LAW

The criteria are not met for entitlement to service connection for a heart condition, type II diabetes mellitus, and hypertension. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1973 to August 1976. 

In October 2021, in support of these claims, he testified during a "virtual" teleconference hearing before the undersigned Veterans Law Judge of this Board. A transcript of the proceeding is of record.

In February 2022, the Board remanded these claims back to the local Regional Office (RO), so back to the Agency of Original Jurisdiction (AOJ), to obtain any outstanding treatment records relevant to the Veteran's claims (whether from VA and/or private providers) and to have him undergo a VA examination for a needed medical opinion regarding the nature and etiology of his arthritis  especially in his left knee and in terms of whether related or attributable to his military service. 

In April 2022, to this end, the Veteran submitted a VA Form 21-4142, General Release for Medical Provider Information to VA, identifying Dr. J.M.P., a private physician, as having potentially relevant records. The RO (AOJ) resultantly attempted to obtain these additional records, but was unable to, and accordingly notified the Veteran of this in April 2022 correspondence. See April 2022 Correspondence and May 2022 Report of Contact. In May 2022, he in turn notified the RO that this medical provider since has retired and closed his practice and that he, too, was unsuccessful in obtaining this doctor's treatment records.  Thus, these additional records are not forthcoming, and VA has made the required reasonable efforts to obtain them.  See 38 C.F.R. § 3.159(c) and (e).

As for the additional remand directive regarding his claim for arthritis, the Veteran underwent a VA examination in April 2022. However, as will be discussed, the report of the evaluation does not provide the necessary information, so the additional development directed to occur on remand regarding this claim has not been accomplished  even to what could be considered a "substantial" extent.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Thus, the Board is again remanding this claim, although going ahead and deciding the remaining others.

Service Connection

1. Entitlement to service connection for a heart condition

2. Entitlement to service connection for type II diabetes mellitus

3. Entitlement to service connection for hypertension, including as secondary to a heart condition

It is not in dispute that the Veteran has the requisite diagnoses of a heart condition, type II diabetes mellitus, and hypertension (persistently elevated blood pressure). There still must be indication, however, these conditions started during his service, within a year of his discharge, or are otherwise related or attributable to his service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury
 a heart condition

2. Entitlement to service connection for type II diabetes mellitus

3. Entitlement to service connection for hypertension, including as secondary to a heart condition

It is not in dispute that the Veteran has the requisite diagnoses of a heart condition, type II diabetes mellitus, and hypertension (persistently elevated blood pressure). There still must be indication, however, these conditions started during his service, within a year of his discharge, or are otherwise related or attributable to his service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  And unfortunately, the Board finds that in this equally critical respect the evidence of record is against this notion, so these claims must be denied.

 

There is no probative (meaning competent and credible) evidence that the Veteran's heart condition, type II diabetes mellitus, and hypertension are related directly to any event, injury, or disease during his service. During his August 1976 military separation examination, clinical evaluation of his heart, vascular system, and endocrine system was normal. In addition, he denied any prior heart trouble and high or low blood pressure in recounting his medical history. As well, the remainder of his service treatment records (STRs) similarly are entirely unremarkable for any complaints, treatment, or diagnoses referable to heart ailments, type II diabetes mellitus, high blood pressure or persistent elevation of his blood pressure to suggest he had hypertension.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303.

The same is true for during the one-year presumptive "grace" period following conclusion of the Veteran's service permitting initial manifestation of a heart condition, type II diabetes mellitus, and/or hypertension to a compensable degree (meaning to at least 10-percent disabling).  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 

The ensuing post-service record on appeal is similarly unremarkable for any complaints, treatment, or diagnoses of these disorders until many decades after service. In fact, the first post-service record pertaining to the Veteran's type II diabetes mellitus reflects that he first received this diagnosis in June 2001, so not until approximately 25 years after his separation from service. Similarly, VA treatment records show that he had diagnoses of a heart condition and hypertension in December 2001 and February 2009, respectively, and confirm that he had a past medical history of a heart condition and hypertension. But there is not suggestion that prior medical history dated back to his time in service. A prolonged period following service without any relevant medical complaint can be considered, along with other factors concerning a Veteran's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service that resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 

 

In deciding these claims, the Board must consider all the evidence relevant to them  including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts. Maxson at 1333; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming the Board's denial of service connection when the Veteran-claimant had failed to account for the lengthy time after service before initial indication of symptoms of the now-claimed disability).

In addition, there is no probative evidence in the record suggesting the Veteran's claimed disorders were incurred or aggravated during his service or are otherwise etiologically related or attributable to his service. In response to service connection claims, VA must provide a VA medical examination when there is:  (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with a service-connected disability; but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(
 examination when there is:  (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) an indication the disability or persistent/recurrent symptoms of a disability may be associated with the Veteran's service or with a service-connected disability; but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).

Regarding these claims at issue, no medical examinations or opinions have been obtained. Nevertheless, so that notwithstanding, the Board finds that the evidence of record does not satisfy the standards of McLendon because there is no credible indication of a relationship or correlation between these claimed diseases and the Veteran's military service.

The higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that VA is not required to provide a medical examination when, as in this case, there is no credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). VA is not required to schedule an examination for a medical opinion merely as a matter of course, such as just because the Veteran alleges that he has a claimed disability or asserts there is a relationship or correlation between his claimed disability and his military service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone). This is especially true when the condition at issue is not the type that is readily amenable to mere lay diagnosis or probative lay comment regarding its etiology, so in turn potential relationship to or with the Veteran's military service. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Federal Circuit Court held that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. But the Federal Circuit Court went on to clarify in Waters that a Veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination, since all Veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case. Therefore, the Board finds that a remand for an examination and opinion is not necessary to decide these claims. See 38 C.F.R. § 3.159(c)(4).

In deciding these claims, the Board also has considered the Veteran's personal statements in support of them. He is competent to report on matters observed or within his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he has not conversely been shown to possess any pertinent medical training or credentials that would make him competent to establish that his heart condition, type II diabetes mellitus, and/or high blood pressure (including once it remained elevated to the point of warranting a diagnosis of hypertension) date back to his time in service or are otherwise related or attributable to his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Determining the etiology of these diseases, particularly in terms of whether they originated during his service, within a year of his discharge, or are otherwise related or attributable to his service is beyond his lay competence because these conditions are medical complex, not merely simple.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Accordingly, the Board finds that the elements of service connection have not been met. The most probative (again, meaning most competent and credible) evidence, particularly the medical evidence, does not demonstrate the presence of any heart condition, type II diabetes mellitus, and/or hypertension in service, within a year of discharge, or otherwise attribute any present-day manifestation of these conditions to the Veteran's service.
, particularly in terms of whether they originated during his service, within a year of his discharge, or are otherwise related or attributable to his service is beyond his lay competence because these conditions are medical complex, not merely simple.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

Accordingly, the Board finds that the elements of service connection have not been met. The most probative (again, meaning most competent and credible) evidence, particularly the medical evidence, does not demonstrate the presence of any heart condition, type II diabetes mellitus, and/or hypertension in service, within a year of discharge, or otherwise attribute any present-day manifestation of these conditions to the Veteran's service. 38 C.F.R. § 3.303(d).

Therefore, in conclusion, the Board finds that these claims for service connection for a heart condition, type II diabetes mellitus, and hypertension must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This is not a situation where the evidence for versus against these claims is in "approximate" (meaning nearly equal) balance, i.e., relative equipoise, so there is no reasonable doubt to resolve in the Veteran's favor. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

REASONS FOR REMAND

1. Entitlement to service connection for arthritis is again remanded.

As already mentioned, the Veteran had a VA examination in April 2022, following and because of the Board's prior remand of this claim, to determine the nature and etiology of his arthritis. The VA examiner noted that the X-rays at the time of the evaluation showed mild osteoarthritis in the knees; however, while the Veteran maintained that his condition was caused by dropping a fuel trailer on his knee, there was no evidence of chronicity of care for his bilateral (left and right) knee condition. But in coming to that conclusion, the examiner impermissibly equated "chronicity of care" with "continuity of symptoms," and only the latter is required according to 38 C.F.R. § 3.303(b). Continuity of symptoms, not instead continuous treatment for them ("care"), is the essence of § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).

 

Furthermore, the examiner noted that the time frame from separation from service to the Veteran's current diagnosis is too far removed to state that the condition is due to his military service. As such, the April 2022 VA examiner seemingly relied on the lapse of time between the Veteran's separation from service and the initial diagnosis in discounting the posited correlation between the osteoarthritis now in his knees and anything that occurred during his time in service  including the injury mentioned. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354 (1991). But, while it is true this is a relevant consideration, it cannot be the sole or exclusive reason for disassociating this now claimed disability from his service. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and instead relied on the absence of evidence in the STRs to provide a negative opinion). 

A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall, 11 Vet. App. at 271. As the prior remand order was not complied with, even to what could be considered acceptable substantial compliance, and in accordance with Stegall, the deficiencies in the April 2022 medical opinion must be corrected before deciding this claim on appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). But see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (explaining that, whenever VA endeavors to provide an examination for a medical opinion, it must ensure they are adequate).

Accordingly, this
gall, the deficiencies in the April 2022 medical opinion must be corrected before deciding this claim on appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). But see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (explaining that, whenever VA endeavors to provide an examination for a medical opinion, it must ensure they are adequate).

Accordingly, this remaining claim is again REMANDED for the following still additional development and consideration:

Obtain still additional medical comment (an addendum opinion) concerning the nature and etiology of the Veteran's arthritis, including specifically in his left knee but also in his right knee and especially in terms or whether related or attributable to his military service. A complete copy of this remand and all relevant medical and other records must be made available to the examiner for review. The examiner should review the pertinent evidence, including the Veteran's lay assertions regarding the history of this claimed disability.

Based on review of the Veteran's medical records, his lay statements regarding the development and treatment of this claimed condition, and all other relevant evidence in the claims file, including, again, a complete copy of this remand, the examiner should answer the following question:

Is it at least as likely as not the Veteran's arthritis, including specifically in his left knee but also in his right knee (i) began during his service from September 1973 to August 1976, or, (ii) within a year of his discharge, so by August 1977, or (iii) is otherwise related or attributable to a disease, an event, or an injury in service?

*In making these determinations, the examiner must address the August 1976 separation examination, during which the Veteran reported experiencing pain in his knees and noted that he had dropped a fuel/water trailer on his left knee but did not see a doctor about it.

*To cure the failings of the prior April 2022 examination and opinion, caution must be taken not to mistakenly equate or conflate "chronicity of care" with "continuity of symptoms" since only the latter is required according to 38 C.F.R. § 3.303(b). In other words, it is continuous symptoms, not instead continuous treatment for them, which is contemplated by this VA regulation. Therefore, if, as the prior examiner seemingly concluded, the Veteran's condition in service was acute only (rather than chronic), this conclusion cannot be premised on the notion he has not had "chronicity of care" rather than "continuity of symptoms" (i.e., chronicity of symptoms, not care or treatment).

Rationale for the opinion therefore is essential, regardless of whether favorable or unfavorable to this claim, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority.

The Veteran is competent to report his symptoms and history, and these reports must be acknowledged and considered in formulating responses. If the examiner rejects the Veteran's report of chronic symptoms, a reason for doing so must be provided.

The mere absence of evidence of more complaints or treatment of arthritis and/or a knee disability in the Veteran's service treatment records (STRs) or even post-service treatment records prior to initial diagnosis cannot be the sole or exclusive reason for providing an unfavorable opinion. However, it is permissible to 

 

consider this as one of several factors in this determination  provided there also is explanation of why it is reasonable to expect earlier documentation of specific complaints, etc., in treatment records or more complaints than shown.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mukherjee, C.

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.