Citation Nr: 1031973 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 05-28 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a cardiovascular disorder, claimed as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1963 to June 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, inter alia, denied the Veteran's claim for entitlement to service connection for coronary artery disease, post myocardial infarction and abdominal aneurysm (claimed as a heart condition). In March 2007, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO (Travel Board hearing). A copy of this transcript is associated with the record. In October 2007, the Board, inter alia, remanded this claim to the RO for additional development. The case has been returned to the Board for further appellate consideration. The Board notes that additional documents were submitted after the issuance of the October 2009 supplemental statement of the case. The submission of such evidence was accompanied by a waiver of RO consideration dated May 2010. 38 C.F.R. § 20.1304(c) (2009). FINDINGS OF FACT 1. The Veteran was granted service connection for PTSD as of June 11, 2007. 2. There is competent and credible evidence that the Veteran's service-connected PTSD aggravated his cardiovascular disorder. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, his cardiovascular disorder is aggravated by his service-connected PTSD. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & West Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist the Veteran Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). Such 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). Letters dated December 2003, February 2006, and January 2008, provided to the Veteran before the March 2004 rating decision, the January 2007 supplemental statement of the case, and the October 2009 supplemental statement of the case, respectively, satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, since they informed the Veteran of what evidence was needed to establish his claim, what VA would do and had done, and what evidence he should provide. The letters also informed the Veteran that it was his responsibility to help VA obtain medical evidence or other non-government records necessary to support his claim. During the pendency of this appeal, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service- connection claim, including the degree of disability and the effective date of an award. The Veteran was provided with such notice in January 2008. In this regard, after initially providing VA notice, followed by subsequent Dingess notice in January 2008, the RO readjudicated the claim in a supplemental statement of the case in October 2009. Thus, the timing defect in the notice has been rectified. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) (holding that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC). In addition, the Veteran has never alleged how a timing error prevented him from meaningfully participating in the adjudication of his claim. As such, the Veteran has not established prejudicial error in the timing of VCAA notice. See Shinseki v. Sanders and Simmons, 129 S. Ct. 1696 (2009). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board, in October 2007, instructed the AOJ to provide the Veteran with notice consistent with Dingess, 19 Vet. App. 473 (2006); obtain the Veteran's Social Security Administration (SSA) records and other relevant medical records; provide the Veteran with a VA Compensation and Pension (C&P) examination; and, if its determination remained unfavorable to the Veteran, issue a new supplemental statement of the case. The Board finds that the AOJ has complied with those instructions. It provided the Veteran with notice consistent with Dingess in January 2008; obtained the Veteran's SSA records and other relevant medical records; provided the Veteran with a VA C&P examination in September 2008, with addenda dated June 2009 and August 2009; and issued a new supplemental statement of the case in October 2009. With respect to VA's duty to assist, the RO has obtained, or made reasonable attempts to obtain, all relevant evidence identified by the Veteran. The Veteran's service treatment records, VA treatment records, SSA records, and available private treatment records have been obtained. Thus, the Board considers the VA's duty to assist satisfied. Accordingly, the Board finds that no further assistance to the Veteran in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. Laws and Regulations Pertaining to Service Connection, to Include on a Secondary Basis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303(a). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and a nexus between the in-service injury or disease and the current disability, established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). 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). Further, 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. See 38 C.F.R. § 3.303(b). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including cardiovascular-renal disease.) This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, (or within a presumptive period per § 3.307), there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate the claimed disability with the service- connected disability). In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that the provisions of 38 C.F.R. § 3.310 have been amended. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the Veteran to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. Given what appear to be substantive changes, and because the Veteran's claims were pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which clearly favors the claimant. When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The threshold criterion for service connection, on either a direct or secondary basis, is the existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Analysis: Service Connection for a Cardiovascular Disorder, Claimed as Secondary to PTSD The Veteran contends in his November 2003 claim that his "PTSD has caused extreme stress on my heart." In his September 2005 substantive appeal, the Veteran again asserted that his PTSD had caused his coronary artery disease. In a January 2007 letter, the Veteran attributed his "two major heart attacks" to his PTSD. The Veteran asserted in a July 2008 letter that he "should be awarded service connection for the cardio-vascular disorder, secondary to the PTSD," based on the available medical evidence. At his March 2007 hearing before the Board, the Veteran reported that he first had heart problems in 1979. Id. at p. 14. He also stated that a VA psychiatrist related his heart disorder to his in-service stressors. Id. at pp. 14-15. The Veteran's service treatment records show no complaints, diagnosis, or treatment of any cardiovascular disorder in service. A clinician found his heart and vascular system to be normal on clinical evaluation in March 1961, May 1966, and April 1969. Following service, the Veteran has multiple diagnoses of a cardiovascular disorder. The Veteran underwent a cardiac catheterization in late January and early February 1985. In July 1995, he underwent a coronary angioplasty of the left anterior descending coronary artery. The Veteran's March 2003 SSA records show that he has had ischemic heart disease since September 1998. A private physician, K.W. Konrad, Ph.D., M.D., diagnosed the Veteran with coronary artery disease (CAD) and chest pain in February 2002. Another private physician, R.H. Williams, M.D., diagnosed the Veteran with "coronary heart disease" in May 2002. In March 2002, a VA clinician noted that the Veteran had a history of three myocardial infarctions (heart attacks), most recently in 1995. She diagnosed the Veteran with coronary artery disease. A physician filled out a form in November 2005 in which he listed the Veteran's coronary artery disease as being among the disorders which were attributable to his service. The physician did not include any rationale to accompany his conclusion. VA provided the Veteran with a C&P examination of his heart in September 2008. The VA examiner noted that he had reviewed the claims file extensively. The VA examiner noted that the Veteran had experienced an ST elevation myocardial infarction and was found to have severe 3-vessel coronary artery disease and a large Abdominal Aortic Aneurysm (AAA) in September 2004. He further noted that catherization studies revealed a large AAA and iliac artery occlusive disease, as a result of which the Veteran previously undergone a 4-vessel coronary artery bypass graft (CABG), and, six months later, an elective open aneurysm repair. The VA examiner opined that the Veteran's "Coronary Artery Disease was aggravated by PTSD." The VA examiner explained that the Veteran had multiple etiologies for his coronary artery disease, including tobacco use, cocaine use, hypertension, hyperlipidemia, male gender, age, and stress; he further found that the Veteran's stress was due to his bipolar disorder, personality disorder, polysubsatnce abuse, and economic stress. The VA examiner explained that "[h]owever, it is also abundantly clear that [the Veteran] did undergo experiences in the military in 1966-1969 that led to a real condition of PTSD. His PTSD also contributes to his stress. [The Veteran's] PTSD has been present for a number of years before his cardiac disease manifested and based on the temporal relationship and sev[er]ity of the PTSD the PTSD definitely was, and is, an aggravating factor in the development of his coronary artery disease." In a June 2009 addendum, the VA examiner further opined that the Veteran's Abdominal Aortic Aneurysm was permanently aggravated by his PTSD. The VA examiner explained that "The Veteran's AAA measured 4.2 cm [centimeters] in the months prior to his surgery. The baseline manifestations of the Veteran's AAA cond[i]tion was a AAA that measured 3.6 cm. The increased manifestation of the Veteran's AAA cond[i]tion was an AAA that measured 4.2 [cm] and was proximately due to the [service-connected] PTSD. The Veteran's Abdominal Aortic Aneurysm was aggravated to a degree beyond the natural progression of the disease." The VA examiner further found that the Veteran's PTSD was responsible for 1/7 of the size of the Abdominal Aortic Aneurysm. The VA examiner provided a second addendum in August 2009. He restated his opinion that "The Veteran's current heart condition is caused by [his] PTSD to some degree. The Veteran's current heart condition is caused by a[r]throsclerosis which is caused by the Veteran's MULTIPLE risk factors, that include: Hypertension, Hyperlipid[e]mia, Cocaine use, tobacco use, male gender, age, Stress from [non-service connected] Bipolar disorder, and PTSD. It is my opinion that PTSD contributes 10% to his current heart condition." The VA examiner referred to his prior evaluations for his medical rationale. Competent medical evidence includes statements from a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Because the VA examiner is so qualified, his medical findings constitute competent medical evidence. In order for a VA examination to be considered adequate in a case of service connection, the VA examiner must either provide an etiological opinion, or provide a rationale for why an etiological opinion cannot be rendered. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA examiner provided an etiological opinion that the Veteran's CAD and AAA are aggravated by his service-connected PTSD. The VA examiner based his medical opinion on the relationship between stress and CAD, and on baseline and later measurements of the Veteran's AAA. The Board further notes that the VA examiner extensively considered the Veteran's medical records and history in his reports. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Consequently, his report and addenda are deemed adequate. The Board notes that two pages from the Merck Manual have been added to the Veteran's claims file. Highlighted sections of those pages indicate that repetitive use of "cocaine....produces toxic effects, such as tachycardia, hypertension, mydriasis, muscle twitching, sleeplessness, and extreme nervousness....Repeatedly smoking volatile crack cocaine in high doses can have serious toxic cardiovascular and behavioral consequences." Medical treatise evidence, however, can provide important support when combined with an opinion of a medical professional. Mattern v. West, 12 Vet. App. 222, 228 (1999). But that is not the case here. Thus, the Board concludes that this information is insufficient to establish a medical nexus opinion. The Board notes that it would be reversible error for VA to substitute its own conclusions regarding the effect of the Veteran's cocaine use for those of the qualified VA examiner. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Furthermore, provisions regarding the loss of eligibility for service connection due to willful misconduct by a Veteran do not apply in this case. Pursuant to 38 C.F.R. § 3.301(c)(3), organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. Because the VA examiner has opined that the Veteran's organic diseases-namely, coronary artery disease and abdominal aortic aneurysm-are a secondary result of both cocaine use and service- connected PTSD, those conditions will be not considered of willful misconduct origin. 38 C.F.R. § 3.301(c)(3). Where, as here, there is competent medical evidence showing that the Veteran's service-connected PTSD has aggravated his cardiovascular disorder, and no competent medical evidence to the contrary is of record, the Board may not seek out a medical opinion to the contrary. Mariano v. Principi, 17 Vet. App. 305 (2003). In light of the current evidence of record, service connection is warranted for the Veteran's cardiovascular disorder, as secondary to his service-connected PTSD. The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence of record, including the VA examiner's conclusions that the Veteran's service-connected PTSD has aggravated both his coronary artery disease and his abdominal aortic aneurysm, provides sufficient probative evidence on which to grant the Veteran's claim. 38 C.F.R. § 3.102. Accordingly, service connection for a cardiovascular disorder, as secondary to the Veteran's service-connected PTSD, is granted. However, the Board notes that the precise nature and extent of his now service- connected cardiovascular disorder is not before the Board at this time. Only when the RO rates the cardiovascular disorder will this become a pertinent consideration. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). ORDER Service connection for a cardiovascular disorder, as secondary to service-connected PTSD, is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs