Citation Nr: 0914582 Decision Date: 04/17/09 Archive Date: 04/24/09 DOCKET NO. 03-06 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for hypertension secondary to service-connected depression and other service- connected disabilities. 2. Entitlement to service connection for heart disease secondary to service-connected depression and other service- connected disabilities. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The Veteran had active service from May 1969 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, that denied entitlement to service connection for hypertension, as secondary to depression, and heart disease, including as secondary to depression and secondary to lack of exercise. The Veteran presented testimony at a personal hearing in February 2006 before the undersigned. The appeal was remanded in April 2006 for further development. The issue of entitlement to service connection for heart disease secondary to depression and service-connected disabilities is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the competent medical evidence shows his hypertension is aggravated by his service-connected depression and other service connected orthopedic disabilities. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, service connection for hypertension, secondary to service- connected depression and orthopedic disabilities is warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a 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. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). In this case, the Board is granting the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, any error was harmless and will not be further discussed. The Veteran seeks service connection for hypertension claimed as secondary to service-connected depression and other service-connected disabilities. 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, 1131; 38 C.F.R. § 3.303(a). With chronic disease shown as such in service, or within a pertinent presumption period under 38 C.F.R. § 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. Continuity of symptomatology after discharge is required only where the condition noted during service (or in the presumption period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and if the evidence includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). To prevail on the issue of service connection, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Where a veteran served continuously for 90 days or more during a period of war or after December 31, 1946, and specified diseases to include hypertension become manifest to a degree of 10 percent 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1101, 1112, 1113 (West 2002); 38 C.F.R. § 3.307, 3.309 (2008). When a disability is not initially manifested during service or within an applicable presumption period, direct service connection may nevertheless be established by evidence demonstrating that the disability was in fact incurred or aggravated during the veteran's service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. 38 C.F.R. § 3.310 (2008). Secondary service connection is also permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service- connected disability caused by a service- connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309 (1993). Establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists; and that the current disability was either caused or aggravated by a service- connected disability. 38 C.F.R. § 3.303, 3.310. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Black v. Brown, 10 Vet. App. 279 (1997). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). The Veteran's service medical records are negative for complaints, findings, or diagnosis of hypertension. At the Veteran's enlistment examination in May 1969, his blood pressure was 136/58. At his separation examination in August 1972, his blood pressure was 130/76. The Veteran claimed in January 2002 that his hypertension was secondary to or aggravated by his service-connected depression. At a VA heart examination in March 2005, the impression was hypertension, not well controlled. The examiner provided an opinion that the causes of hypertension were multifactorial. Things such as pain, smoking, and sedentary lifestyle, could contribute to it, but were not the cause of it. The underlying cause was vascular and while the Veteran's depression may aggravate it, or his pain may aggravate it, that was a temporary facet of hypertension and not cause or aggravation. The Veteran testified at a personal hearing in February 2006 that he was claiming service connection for hypertension secondary to service-connected depression and to other service-connected disabilities. He testified as to the effect of his service-connected orthopedic disabilities and the prescribed medication he takes for those disabilities on his hypertension. The Veteran submitted excerpts from the Physician's Desk Reference, 5th Edition showing the relevant side effects of the medications he uses. He also testified that the onset of his service-connected knee disability was prior to a diagnosis of hypertension. In October 2008, a VA physician who had previously examined the Veteran in March 2005 for a mental disorders examination reviewed the claims file and had a long discussion with the Veteran to bring him up to date. In terms of causation, the physician believed the Veteran's hypertension had been aggravated by his orthopedic difficulties because of the pain that he had been having in both the right knee and back. The VA physician stated that it was at least as likely as not that the Veteran's hypertension had been aggravated by his depression which was caused by the significant amount of pain he had been having in his back and his knee. The depression due to the severe pain had been partially a cause of the high blood pressure. The physician was unable to give an exact percentage. The physician did not think that the Veteran's medications were doing it. The physician did think that the pain which had really caused the Veteran's depression had been a factor in the difficulty he had. After a thorough review of the record, the Board concludes that the evidence is in equipoise as to establishing that the Veteran's hypertension is aggravated by his service-connected disabilities. Where neither the veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. The Veteran contends that he has hypertension that is secondary to his service-connected depression and other service-connected disabilities. He has not contended and the evidence does not suggest that his hypertension had its onset during service or in an applicable presumptive period. Therefore, entitlement to service connection on a direct or presumptive basis will not be discussed. Robinson v. Mansfield, 21 Vet. App. 545 (2008). 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. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. 3.159(a). Lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Here, VA treatment records establish that the Veteran has been diagnosed with hypertension and has taken medication to control the condition. Thus, the evidence shows that the Veteran has a current disability of hypertension. The March 2005 examiner provided an opinion that pain could contribute to hypertension, but was not the cause of it. The underlying cause was vascular and while the Veteran's depression or pain may aggravate it, this was a temporary facet of hypertension and not cause or aggravation. However, the October 2008 VA physician's opinion was that it was at least as likely as not that the Veteran's hypertension had been aggravated by his depression, which was caused by the significant amount of pain he has been having in his back and his knee. The March 2005 VA medical opinion appears primarily to be a negative medical opinion as to cause or aggravation. Although the March 2005 examiner acknowledged that the Veteran's depression or pain might aggravate his hypertension, the examiner opined that was temporary and not cause or aggravation. However, the October 2008 VA medical examiner's opinion found that the Veteran's hypertension was aggravated by his depression which in turn was caused by his service-connected orthopedic disabilities. The October 2008 medical opinion does not find that the Veteran's service- connected disabilities had caused the Veteran's hypertension. Although the October 2008 VA examiner mentions that depression due to the severe pain the Veteran has had had been partially a cause of his high blood pressure, when viewed in the context of the entire paragraph, the statement is part of the examiner's opinion that the depression has aggravated the Veteran's hypertension. Based on the foregoing, the competent medical evidence is about evenly balanced for and against the claim, thus in equipoise, as to whether the Veteran has hypertension that is aggravated by his service-connected disabilities. Therefore, the Board will resolved the reasonable doubt in favor of the Veteran. In sum, secondary service connection is available for disabilities that are proximately due to or the result of a service-connected disability or aggravated by a service- connected disease or injury. 38 C.F.R. § 3.310 (2008); Allen v. Brown, 7 Vet. App. 439 (1995). Accordingly, reasonable doubt should be resolved in favor of the Veteran and service connection for hypertension on the basis of aggravation secondary to service-connected disabilities is granted. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for hypertension, due to aggravation by service-connected disabilities, is granted. REMAND The Veteran seeks entitlement to service connection for heart disease secondary to service-connected depression and other service-connected disabilities which now also includes hypertension granted in the above decision. He contends that his heart problems were secondary to depression by aggravation. He also contended that his heart might be affected by lack of exercise due to his service-connected back and knee disabilities. In addition, he had a serious infection, with high fever, during service and was hospitalized at Keesler AFB, Mississippi around 1969. He felt that illness in 1969 might have affected his heart. The Board remanded the issue in April 2006 for the Veteran to undergo a VA examination to determine the nature and etiology of his claimed heart disease. After a review of historical records and medical principles, the examiner was to provide a medical opinion as to whether any diagnosed cardiac disease had been aggravated by the Veteran's service connected depression or orthopedic disabilities or the medication prescribed for service-connected depression and/or orthopedic disabilities. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service- connected disorder has aggravated a nonservice-connected disability, but in such a case the veteran may be compensated only for the degree of additional disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). At a VA examination in October 2008, the examiner provided a medical opinion that the Veteran's heart disease was related to an abnormal aortic valve which was either congenitally bicuspid or secondary to rheumatic fever. However, the examiner did not address whether the cardiac disease had been aggravated by the Veteran's service connected depression or orthopedic disabilities or the medication prescribed for service-connected depression or orthopedic disabilities. Compliance by the Board or the RO with remand instructions is neither optional nor discretionary. Thus, this case must be returned for further development. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Request a supplemental opinion from the VA physician who met with the Veteran in October 2008 and reviewed the claims file for the purpose of ascertaining whether it is as likely as not (50 percent probability or more) that the Veteran's cardiac disease has been aggravated by his service-connected disabilities or the medication prescribed for those disabilities. The claims file must be reviewed and that review should be noted in the report. The determination as to whether an additional examination is needed is left to the physician's discretion. If that physician is no longer available or unable to provide the requested opinion, please forward this request for a supplemental opinion to another appropriate physician, with the option for an examination if the physician deems it necessary. The physician should provide an opinion with adequate rationale as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed cardiac disorder has been aggravated by: (1) the Veteran's service connected disabilities to include depression, hypertension, and orthopedic disabilities; or (2) the medication prescribed for service-connected depression, hypertension, or orthopedic disabilities. 2. Then, readjudicate the claim. If the benefit sought on appeal remains denied, issue a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs