Citation Nr: 0514550 Decision Date: 05/27/05 Archive Date: 06/08/05 DOCKET NO. 03-30 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for cardiovascular disease as being proximately due to or the result of the service connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeffrey Pisaro, Counsel INTRODUCTION The veteran had active service from November 1950 to August 1952. This appeal arises from rating decisions of the Muskogee, Oklahoma Regional Office (RO). Consideration of the issue of entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) was requested by the veteran in July and September 2004. By rating decision in October 2004, a 100 percent evaluation was assigned for PTSD. It was indicated in the rating decision that the veteran's outstanding TDIU claim was not for consideration in view of the current grant. The RO, therefore, should contact the veteran and ascertain whether he wishes to pursue or withdraw the claim for TDIU benefits in view of the fact that a 100 percent rating has been assigned for the service connected PTSD. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran currently suffers from cardiovascular disease to include hypertension and congestive heart failure that was caused by the service connected PTSD. CONCLUSION OF LAW The veteran's cardiovascular disease to include hypertension and congestive heart failure is proximately due to or was the result of the service connected PTSD. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's service medical records, except for the separation physical examination are unavailable. The August 1952 report of separation physical examination shows that the veteran's heart and vascular system were clinically evaluated as normal. Blood pressure was 120/70. The National Personnel Records Center (NPRC) certified in September 1989 that a search of sick and morning reports revealed no evidence in relation to the veteran's service. VA x-rays of the chest in February 1995 revealed that the cardiac silhouette was at the upper limits of normal and there was a prominent left ventricular contour. A January 1996 VA hospital report indicates that the veteran had been seen in November 1995 with congestive heart failure and atrial fibrillation. A past medical history of hypertension was noted. The diagnoses included hypertension and congestive heart failure. By rating decision in March 2001, service connection was granted for PTSD and a 30 percent evaluation was assigned effective from January 2000. The veteran filed a claim of service connection for cardiovascular disease secondary to the service connected PTSD in July 2001. On VA examination in November 2001, the examiner noted that the veteran's claims folder was not available for review. The examiner opined that the veteran's congestive heart failure was more likely than not secondary to his hypertension. An August 2002 statement from Bob Abernathy, D.O., indicates that it was well documented in Harrison's, 15th edition, that PTSD causes an increase in the chemical Norepinephrine which was better known as adrenalin. This was well known as a cause of high blood pressure and heart problems. PTSD was a well-known causal disease for stress and subsequently for hypertension and heart problems. It was opined that it was as likely as not that the veteran's PTSD was a very good and likely cause of his hypertension and heart disease. An August 2003 statement from one of the veteran's treating VA physicians indicates that it was as likely as not that the veteran suffered with years of stress. It was opined that PTSD induced stress was a very good and likely cause of the veteran's heart problems. A December 2003 statement from a physician at the Comanche County Memorial Hospital indicates that he was treating the veteran. It was noted that PTSD was a well known causal agent for stress and subsequently for hypertension and heart disease. Stress was noted to be the "wear and tear" that humans experience on their bodies as they continually adjust to changing environments. It was opined that it was as likely as not that the veteran suffered with years of stress due to his PTSD. Therefore it was more likely than not that PTSD induced stress was a very good and likely cause of his heart problems. A May 2004 VA fee based cardiology examination, conducted by Azhar Amil, M.D., indicates that the veteran reported suffering from PTSD related stress for 49 years. An eight year history of congestive heart failure was noted. The diagnoses included congestive heart failure. It was opined that congestive heart failure was most likely due to hypertension and mitral regurgitation. It was unlikely that PTSD produced congestive heart failure after 30 plus years. He was diagnosed with congestive heart failure in the 1980s and psychiatric reports noted only mild PTSD symptoms. Hypertension was known to be a causative factor in the development of congestive heart failure. It was opined that congestive heart failure was most likely than not due to the veteran's hypertension. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and cardiovascular disease to include hypertension becomes manifest to a degree of ten (10) percent or more within 1 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. Service connection may be also 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). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Furthermore, it was determined in the case of Allen v. Brown, 7 Vet. App. 439 (1995), that service connection may be awarded for a disability under 38 C.F.R. § 3.310 if a disability was aggravated by a service-connected disability. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." In Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert, the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the veteran prevails. Thus, to deny a claim on its merits, the preponderance of the evidence must be against the claim. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The United States Court of Appeals for the Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this case, the veteran contends that he suffers from heart disease that is the result of his service connected PTSD. The RO has characterized the issue on appeal as congestive heart failure. The veteran was initially diagnosed with congestive heart failure and hypertension in 1995. Cardiovascular is defined as relating to the heart and the blood vessels or the circulation. Stedman's Medical Dictionary, 283 (26th ed. 1995). As hypertension and congestive heart failure fall under the definitional umbrella of cardiovascular, the Board has elected to generically refer to the instant claim as service connection for cardiovascular disease. It has neither been contended nor does the medical record reflect that cardiovascular disease was present during service or within the initial post service year. Therefore, this appeal solely concerns a claim for secondary service connection. In this regard, there are multiple medical opinions of record. Some of these opinions support this claim and some of the opinions do not support the veteran's claim. The resolution of this case will hinge on whether there is adequate medical evidence of a nexus between the service connected PTSD and the veteran's current cardiovascular disease. The Board has the duty to assess the credibility and weight to be given the evidence relative to this issue. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), reconsideration denied per curiam, 1 Vet. App. 406 (1991)). This assessment of credibility and weight to be given the evidence includes scrutiny of a medical professional's statements in association with such related factors as the basis for the opinions rendered, i.e., presence or absence of clinical records. In this case, there are medical opinions which offer divergent positions on the putative relationship between the veteran's service connected PTSD and his current cardiovascular disease. While professional opinions must be considered, VA is not bound to accept any such opinion considering the merits of the claim. See, i.e., Hayes v. Brown, 5 Vet. App. 60 (1993). The Court has provided some guidance as to how the Board should approach the evaluation of medical opinions. In Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994), in discussing the Board's use of independent medical opinions (IME), the Court stated: An IME opinion is only that, an opinion....The VA claims adjudication process is not adversarial, but the Board's statutory obligation under 38 U.S.C. § 7104(d)(1) to state 'the reasons or bases for [its] findings and conclusions' serves a function similar to that of cross-examination in adversarial litigation. The BVA cannot evade this statutory responsibility merely by adopting an IME opinion as its own, where, as here, the IME opinion fails to discuss all the evidence which appears to support appellant's position. In short, adequate reasons and bases must be presented if the Board adopts one medical opinion over another. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). A VA examiner in November 2001 opined that congestive heart failure was secondary to hypertension. This opinion is both cryptic in nature and incomplete on its face. It fails to opine on the relationship, if any, between PTSD and cardiovascular disease to include hypertension. Moreover, this opinion was offered without the examiner having the veteran's claims folder for review. As a result, the November 2001 VA opinion is without probative value. See Green v. Derwinski, 1 Vet. App. 121 (1991); (VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2). An August 2002 statement from Dr. Abernathy noted that it was a well-documented fact in the medical community that PTSD causes stress which in turn can cause hypertension and heart disease. This statement was supported by citation to relevant medical text. It was therefore opined that the veteran's PTSD was a very good and likely cause of his hypertension and heart disease. The elemental points provided in the August 2002 opinion were corroborated by a December 2003 private medical opinion and by an August 2003 opinion from a VA treating physician. These opinions all stressed that the veteran suffered from years of heightened stress due to the service connected PTSD. Dr. Abernathy's opinion, as buttressed by two corroborating opinions, is persuasive in several ways. First, it is based on an accurate review of the medical record. It is also based on well documented medical principles that were supported by relevant medical text. In addition, the corroborative nature of the three opinions concerning the etiology of cardiovascular disease, both VA and private, is a very powerful agent in favor of the instant claim. Moreover, Dr. Amil's opinion is not necessarily in contravention with the other opinions. As a cardiologist, Dr. Amil opined in May 2004 that congestive heart failure was most likely due to the veteran's hypertension. He also opined that congestive heart failure was not due to PTSD. He did note that the veteran reported a 49-year history of PTSD related stress. Dr. Abernathy opined that PTSD induced stress caused hypertension and, in turn, congestive heart failure. Dr. Amil failed to opine as to the nexus, if any, between PTSD and hypertension. Nevertheless, in consideration of the persuasive opinion offered by Dr. Abernathy in concert with the supporting opinions of several other physicians, the Board finds that the current evidentiary record supports the claim of service connection for cardiovascular disease to include hypertension and congestive heart failure as being etiologically related to the service connected PTSD without resort to a more full-bodied opinion from Dr. Amil. The Board acknowledges that the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)), imposes certain notification requirements and clarified VA's duty to assist claimants in developing evidence pertinent to their claims. In this regard, the Board notes that the instant claim of entitlement to service connection for cardiovascular disease is being granted in full. Consequently, as the Board is issuing a favorable decision in this case, a determination as to whether the provisions of the VCAA have been complied with has been rendered immaterial. ORDER Entitlement to service connection for cardiovascular disease to include hypertension and congestive heart failure as being proximately due to or the result of the service connected PTSD is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs