Citation Nr: 1003814 Decision Date: 01/26/10 Archive Date: 02/16/10 DOCKET NO. 05-25 643 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for congestive heart failure (CHF), as secondary to service-connected disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1969; he was awarded a Purple Heart attendant to combat service in the Republic of Vietnam during the Vietnam era. This matter came to the Board of Veterans' Appeals (Board) initially on appeal from rating decisions dated in September 2004 and December 2005, in which the RO, in pertinent part, denied the Veteran's claims for service connection for hypertension and for CHF, respectively. Subsequently, the Veteran perfected appeals to both issues. In March 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is associated with the claims file. In June 2008, the Board remanded both issues to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. In a July 2009 rating decision issued by the AMC, service connection was granted for hypertension as secondary to the Veteran's service-connected PTSD and an initial 10 percent rating was assigned, effective March 10, 2008. This is considered a full grant of the Veteran's claim and, thus, this issue is no longer in appellate status. As a final preliminary matter, the Board notes that, in an August 2009 letter, the Veteran noted that, even though he was granted an initial 10 percent rating for hypertension, he received no more disability compensation. This issue is referred to the RO to explain how disability compensation is calculated under 38 C.F.R. § 4.25 such that when his separate disability ratings are combined they result in a combined rating of 40 percent. FINDING OF FACT The evidence is in relative equipoise as to whether Veteran's has CHF that is proximately due to his service-connected hypertension. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for entitlement to service connection for CHF as secondary to the Veteran's service-connected hypertension are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Given the Board's favorable disposition of the Veteran's claim for service connection, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. II. Analysis In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.310 (which was revised effective in October 2006), service connection also may be granted for disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Initially, the Veteran claimed service connection for CHF as secondary to his service-connected diabetes mellitus type II due to aggravation. In support, the Veteran submitted copies of Internet articles showing apparent links between exposure to Agent Orange and also to hypertension and diabetes mellitus. A July 2004 VA echocardiogram (ECHO) showed normal left ventricular size and systolic function, reduced diastolic compliance, and minimal aortic sclerosis without significant stenosis. Subsequently, the Veteran's VA primary care physician diagnosed him with CHF. An August 2004 VA stress test was negative. In a January 2006 statement, the Veteran's VA primary care physician indicated that the Veteran was diagnosed with CHF on July 29, 2004 and that his CHF was aggravated by his diabetes mellitus type II. However, an October 2005 VA examiner opined that it was less likely as not that the Veteran's CHF was caused by, or a result of, his diabetes mellitus type II. In the December 2005 rating decision, on appeal, service connection for CHF was denied as not being related to the Veteran's service-connected diabetes nor was there any evidence of CHF during service. During a March 2007 VA heart examination, the Veteran had slight leg edema. Cardiac auscultation revealed distant heart "pounds" with no appreciable gallop, murmur, rub or click. There was no appreciable jugular vein (JV) distension, thyromegaly, or carotid bruit. There was no evidence of phlebitis. The examiner noted that the Veteran had a history of high blood pressure and of elevated cholesterol. He had had no objective evidence of coronary artery disease. The Veteran's current symptoms were shortness of breath with activities, leg edema and leg pains, and feelings of weakness with activities. It appeared that the Veteran's symptoms, including edema, leg pains, and shortness of breath, started before he was medically treated for diabetes. The March 2007 VA examiner noted that from his review of the records and the Veteran's interview, the Veteran's high blood pressure and elevated cholesterol had been treated since 1993, while his diabetes was first diagnosed in 2002. About three or four years prior to April 2003, the Veteran was having shortness of breath and was told that it was due to lack of conditioning. Thus, the Veteran's hypertensive heart disease was the cause of his heart problems, which started first, and diabetes much later. About two years ago, the Veteran was told he had cardiomegaly. He also had leg edema, shortness of breath, leg soreness and generalized achiness. On examination, the Veteran had slight leg edema. There was no S3 gallop at the apex. Pulmonary second heart sound was not accentuated. There was no JV distension. The final impression was that, in the examiner's opinion, the Veteran's cardiac findings occurred much earlier than the diagnosis of diabetes mellitus type II and that hypertensive heart disease is the explanation for his cardiac symptoms and findings. A May 2007 consult at the Branson Heart Center revealed non- diagnostic T wave change noted in anteroseptal lead and lateral lead on an electrocardiogram (EKG). Following an examination, the assessment included a history of cardiomegaly (enlarged heart), suspect secondary to sleep apnea; hypertension; right-sided heart failure with edema; and diabetes mellitus type II with patient on Avandia. The Veteran was placed on Aldactone for his right-sided heart failure with edema and suspected pulmonary hypertension. The private cardiologist noted that a recent trial suggested Avandia could cause early heart disease, acute coronary syndrome, and recommended that the Veteran's primary care physician discontinue Avandia and change to a different medication for treatment of diabetes mellitus. An ECHO performed later the same month revealed mild dilation of the left atrium; mild aortic root dilation and calcification; trace mitral and tricuspid regurgitation; trace pulmonic insufficiency; and mild to moderate concentric left ventricular hypertrophy. A June 2007 stress test showed no evidence of ischemia or infarct and no significant ischemic ST changes during stress and recovery. Subsequent, VA medical records reflect treatment for coronary artery disease. During his March 2008 Travel Board hearing, the Veteran asserted that his CHF was secondary to either his service- connected diabetes mellitus and/or to his then nonservice- connected hypertension. He also claimed that his hypertension was due to exposure to Agent Orange during service or, alternatively, was secondary to his service- connected PTSD. During a November 2008 VA examination, a grade 1/6 holosystolic murmur was heard at the left sternal border. The VA examiner noted that the most recent ECHO showed normal-sized cardiac chambers with evidence of left ventricular hypertrophy and left atrial enlargement. According to the VA examiner, there was no mention of pulmonary hypertension. Diagnoses included leg edema due to CHF with normal systolic function, likely due to diastolic left ventricular dysfunction; and left ventricular hypertrophy, likely due to longstanding hypertension. After a May 2009 claims file review, a VA cardiologist opined that the Veteran's hypertension was more than 50 percent likely to have been caused by his service-connected PTSD. She also opined that the Veteran's CHF was not caused or aggravated by his service-connected diabetes, adding that she was not sure he has CHF. In this regard, the May 2009 VA cardiologist noted that the Veteran has normal left ventricular function and, although he has had some edema, he was not on treatment for CHF other than Furosemide, and that a private cardiologist had indicated that the Veteran's edema was secondary to his sleep apnea. This examiner also opined that the Veteran's CHF was not caused or aggravated by his service-connected hypertension, noting that there was no evidence that the Veteran has CHF and adding that he has some edema, but edema in and of itself with normal left ventricular function does not designate one as having CHF. As noted above, in a July 2009 rating decision, service connection was granted for hypertension as secondary to the Veteran's service-connected PTSD. Post-service private treatment records reflect that the Veteran was first diagnosed with hypertension in 1993. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). On review, the Board finds that the record contains an approximate balance of negative and positive evidence as to whether the Veteran has CHF. However, if he does, it is the result of his service-connected hypertension according to the March 2007 VA examiner and the November 2008 VA examiner, thus discounting the Veteran's VA primary care doctor's opinion that the Veteran's CHF is aggravated by his diabetes, who diagnosed the Veteran with CHF in July 2004. The October 2005 VA examiner did not provide an opinion with regard to the relationship between the Veteran's CHF and his hypertension. And the May 2009 VA cardiologist's negative opinion with regard to any relationship between CHF and hypertension was based on her opinion that the Veteran does not have CHF. However, her rationale for her conclusion appears flawed, as she discounts the fact that, although the Veteran has had some edema, he was not on treatment for CHF other than Furosemide. Thus, in her own words she admits that the Veteran is being treated for CHF with Furosemide. She also ignores the 2007 private cardiac consultant's findings that the Veteran had right-sided heart failure with edema and that a contemporaneous ECHO showed trace pulmonic insufficiency and mild to moderate concentric left ventricular hypertrophy. Unlike the other examiners, the May 2009 VA cardiologist did not examine the Veteran. Therefore, the Board finds the May 2007 private consultant's and the March 2007 and November 2008 VA examiners' opinions are more probative with regard to their opinion that the Veteran has heart failure/heart symptoms which, in turn, are due to the Veteran's hypertension. When combined with the other medical findings, and the post-service treatment records and evaluations showing a diagnosis of CHF in July 2004 and continuing treatment of cardiac symptoms with such medications as Furosemide since then and the likelihood that such symptoms are the result of the Veteran's service- connected hypertension, the balance of positive and negative evidence is at the very least in relative equipoise. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision). When a nonservice-connected disorder (CHF) is proximately due to or the result of a service-connected disorder (hypertension), service connection is warranted. Allen, 7 Vet. App. at 448. The Board finds their statements are sufficient medical evidence of a link between the Veteran's service-connected hypertension to his CHF. Resolving all doubt in the Veteran's favor, the Board concludes that service connection for CHF is warranted on a secondary basis. ORDER Service connection for CHF as secondary to service-connected hypertension is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs