Citation Nr: 1007259 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 04-33 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected porphyria or exposure to herbicide agents. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to May 1972. This appeal originally came before the Board of Veterans' Appeals (Board) from an April 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was remanded by the Board in February 2006 for additional development. In March 2008, the Board denied the Veteran's claim. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). The attorney for the appellant and the Secretary of Veterans Affairs filed a motion that vacated and remanded the Board decision in March 2009. Subsequently, this case was returned to the Board. In August 2005, the Veteran testified in a Travel Board hearing in front of the undersigned Veterans Law Judge. The transcript of the hearing is associated with the claims file and has been reviewed. Additional evidence was submitted by the Veteran in April 2009, following certification of the appeal to the Board. The Veteran did not provide a waiver of RO consideration of the evidence. See 38 C.F.R. § 20.1304(c) (2009). The additional evidence consists of a private medical opinion. Generally the evidence must be referred to the RO for review. An exception is made if the Board determines that the benefit to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304(c). Here, the Board's decision is favorable to the Veteran. Thus, it is not necessary to refer this material to the RO for initial consideration. FINDINGS OF FACT Competent medical evidence shows that hypertension was aggravated by service-connected porphyria. CONCLUSION OF LAW Hypertension was aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.303, 3.310 (2009); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full 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, such error was harmless and will not be further discussed. The Veteran asserts that service-connected porphyria aggravated his hypertension. The Board notes that the Veteran is service connected for porphyria. In a March 2006 rating decision, the RO granted service connection for porphyria effective October 28, 2002. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also 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) (2009). 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); 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). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2009). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran has a diagnosis of hypertension. The Veteran testified that his first diagnosis of hypertension was January 1974. The first evidence of a diagnosis of hypertension in the medical evidence of record is in September 1975. The remaining private medical records show treatment for hypertension since September 1975. Therefore, the Veteran has a current diagnosis of hypertension. Additionally, the April 2009 private medical opinion showed that hypertension was aggravated by service-connected porphyria. In the April 2009 opinion, the Veteran's treating physician at a hematology and oncology office reviewed the Veteran's claims file. It was the physician's opinion that more likely than not hypertension was aggravated by porphyria. The physician reasoned that there was a known association between hypertension and porphyria. The physician acknowledged that there was no way to prove that the two disabilities were related, but the assumption was quite valid. The physician also acknowledged that the Veteran had coronary artery disease and other risk factors for hypertension, but there was no way to disprove the association between porphyria and hypertension. The Board finds that the private physician's opinion is adequate and probative. The physician was the Veteran's treating physician, reviewed the claims file and provided a rationale for his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Prejean v. West, 13 Vet. App. 444, 448- 49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). The Board recognizes that in a July 2006 VA Compensation and Pension Examination, an examiner provided the opinion that hypertension was not caused by porphyria. The VA examiner opined that the acute intermittent porphyria did not cause hypertension and medical research did not show that hypertension was documented long-term sequelae of acute intermittent porphyria. This examination, however, did not address the issue of aggravation. As the private opinion is adequate and probative and there is no direct evidence to the contrary, the Board finds that the medical evidence of record does not preponderate against the Veteran's claim that hypertension was aggravated by his service-connected porphyria. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). Therefore the Board affords the Veteran the benefit-of-the-doubt and grants service connection for hypertension as secondary to service- connected porphyria. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. (CONTINUED ON NEXT PAGE) ORDER Service connection for hypertension as secondary to service- connected porphyria is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs