Citation Nr: 0726808 Decision Date: 08/28/07 Archive Date: 09/04/07 DOCKET NO. 04-35 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for diabetes mellitus to include as secondary to service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension to include as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Palmer, Associate Counsel INTRODUCTION The veteran had active service from June 1971 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In the March 2003 rating decision, the RO denied the veteran's claims of service connection for PTSD, diabetes mellitus, and hypertension; however, the Board notes that the RO later granted service connection for PTSD with secondary alcoholism in a September 2004 rating decision. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claims, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran's diabetes mellitus and hypertension have been linked to service-connected PTSD with secondary alcoholism by competent medical opinion. CONCLUSIONS OF LAW 1. Diabetes was caused by the veteran's service-connected PTSD with secondary alcoholism. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2006). 2. Hypertension was caused by the veteran's service- connected PTSD with secondary alcoholism. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. Apr. 5, 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the veteran of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In light of the full grant of benefits sought on appeal in this decision, no further notification or assistance is necessary to develop facts pertinent to these claims. Thus, any notice defects will be addressed by the RO when effectuating the award of benefits. II. Legal Criteria Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2006). 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. See 38 C.F.R. § 3.310(a) (2006); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Service connection may be granted on a direct basis for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2006). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2006). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2006). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes and hypertension become manifest to a degree of 10 percent or more 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. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2006). This presumption is rebuttable by affirmative evidence to the contrary. Id. Where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). The record reflects that the veteran does not have the requisite medical expertise to diagnose his claimed disorders or render a competent medical opinion regarding their causes. Thus, competent medical evidence showing that his claimed disorders are related to service is required. III. Analysis The veteran essentially contends that his service-connected PTSD aggravated his current hypertension and diabetes and seeks service connection for the disorders on a secondary basis. The Board notes that there is ample medical evidence of record showing that the veteran is currently diagnosed with hypertension and diabetes. Indeed, the veteran's VA and private treatment records contain numerous clinical findings of hypertension and diabetes mellitus. It is additionally noted that the veteran's private physicians, J.O.J., M.D. and J.G.D., M.D., reference the veteran's hypertension and diabetes in letters dated in September 2004. Furthermore, the VA medical examiner included impressions of type 2 diabetes and high blood pressure in the June 2004 examination report. The record also contains a competent medical opinion linking the veteran's hypertension and diabetes to his service- connected PTSD. Specifically, Dr. J.O.J. wrote in September 2004 correspondence that the veteran's PTSD aggravates control and management of his type 2 diabetes mellitus as well as his hypertension. It is also observed that a registered nurse practitioner (J.D., ARNP) wrote in a February 2006 letter that it was her medical opinion that the veteran's PTSD may have exacerbated his diabetes and his diabetes may have exacerbated his vascular disease, thus increasing his hypertension. The Board further observes there is no competent medical opinion unfavorable to the veteran's assertions that his PTSD aggravated his diabetes and hypertension apparent in the record. Although the veteran underwent VA examination for his PTSD as well as his hypertension and diabetes in June 2004, neither of the VA examiners offered a medical opinion regarding whether the veteran's diabetes and hypertension was related to his service-connected PTSD. The June 2004 examining VA psychologist wrote that he was unaware of any means of establishing a direct line of causality between PTSD and the veteran's claimed disorders but would defer to medical examiners that are better able to address such questions. The June 2004 VA medical examiner included impressions of diabetes type 2 and high blood pressure in the examination report but made no comment regarding whether such disorders were caused or aggravated by the veteran's PTSD. While the January 2007 Supplemental Statement of the Case notes that an opinion was being requested from a VA psychiatrist regarding the question of whether or not the veteran's hypertension and diabetes mellitus, type II were aggravated by service-connected PTSD, the record reflects that no such request was made. Thus, the Board finds that the veteran's assertion that his current hypertension and diabetes were aggravated by service- connected PTSD is supported by the competent medical evidence of record. The Board, however, notes that the record also contains a competent medical opinion that links the veteran's hypertension and diabetes mellitus to alcoholism, which is also service-connected as secondary to PTSD. Indeed, Dr. J.G.D. wrote in a September 2004 letter that it appeared much more likely that both [the veteran's] hypertension and diabetes were the result of his chronic alcoholism, its attendant difficulties and disabilities. There is no other medical opinion of record regarding the cause of the veteran's diabetes and hypertension. Thus, the Board finds that there is also competent medical evidence showing that the veteran's hypertension and diabetes were caused by service-connected alcoholism. While the Board recognizes that the veteran and his representative have asserted that the veteran's hypertension and diabetes were aggravated by PTSD during the course of this appeal, the veteran's representative also contended in the alternative that the veteran was entitled to service connection on a secondary basis as due to his chronic alcoholism and cited the aforementioned September 2004 opinion by Dr. J.G.D. in the June 2007 Appellant's Brief. As previously explained, the veteran's alcoholism has been service-connected by VA as a disorder secondary to the veteran's PTSD disability and alcoholism has even been characterized and adjudicated together with PTSD (i.e., PTSD with secondary alcoholism). Although the medical evidence shows that the veteran is entitled to service connection for hypertension and diabetes because the disorders were aggravated by PTSD as discussed above, the medical evidence also shows that the veteran is entitled to service connection for diabetes and hypertension because the disorders were caused by alcoholism. As the veteran is entitled to the greater benefit in this case, the Board finds that the medical evidence shows that diabetes and hypertension were caused by service-connected PTSD with secondary alcoholism and an award of service connection for diabetes and hypertension on such basis is warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for diabetes mellitus to include as secondary to service-connected PTSD with secondary alcoholism is granted. Entitlement to service connection for hypertension to include as secondary to service-connected PTSD with secondary alcoholism is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs