Citation Nr: 1126437 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 05-38 766A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for residuals of cardiopulmonary arrest, claimed as secondary to service-connected hypertension. REPRESENTATION Veteran represented by: Swords to Plowshares, Veterans Rights Organization, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1971 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the Veteran's claim. In March 2009, the Veteran presented sworn testimony during a personal hearing in Oakland, California, which was chaired by a Veterans Law Judge who subsequently retired from the Board. A transcript of the hearing has been associated with the Veteran's VA claims folder. A letter was sent to the Veteran notifying him of his right to be scheduled for an additional personal hearing. However, in a response received in May 2010 the Veteran indicated that he preferred the matter to proceed. In September 2010, the Board requested an independent medical expert (IME) opinion. The requested opinion has been provided and associated with the Veteran's VA claims folder. A letter dated March 2011 was sent to the Veteran in an effort to notify him that he was afforded 60 days to provide additional argument or evidence. The letter was returned as undeliverable. The address to which the notice was mailed was the same address provided by the Veteran for correspondence throughout the course of his claim, and there is no evidence of record that the Veteran informed VA of any change in address. It is well-established that it is the Veteran's responsibility to keep VA advised of his whereabouts. "There is no burden on the part of the VA to turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). Accordingly, the Board will proceed. FINDINGS OF FACT 1. The competent medical evidence of record demonstrates that the Veteran is diagnosed with right arm hemiparesis, left leg hemiparesis, and occipital blindness as a result of a cardiopulmonary arrest in July 2003. 2. The competent medical evidence is at least in equipoise as to whether the Veteran's currently diagnosed residuals of the July 2003 cardiopulmonary arrest were proximately due to his service-connected hypertension. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the Veteran's residuals of cardiopulmonary arrest including right arm hemiparesis, left leg hemiparesis, and occipital blindness are proximately due to his service-connected hypertension. 38 C.F.R. § 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his service connection claim in February 2004. The Board need not, however, discuss the sufficiency of either the VCAA notice letter or VA's development of the claim in light of the fact that the Board is granting said claim. Thus, any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefits sought on appeal. The Board observes that all due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2010). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative and, as indicated above, testified at a personal hearing before a Veterans Law Judge. Accordingly, the Board will proceed to a decision. Relevant law and regulations Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2010); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a) (2010). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis A review of the record demonstrates that the Veteran has asserted entitlement to service connection for residuals of a July 2003 cardiopulmonary arrest (claimed as "stroke residuals") as secondary to his service-connected hypertension. See the Veteran's claim dated November 2003; see also the March 2009 Board hearing transcript. Initially, the Board finds a brief review of the facts is helpful in this case. The Veteran served on active duty from Apri 1971 to November 1975. He was service connected for hypertension effective as of the day he left military service, November 9, 1975. VA treatment records dated October 1996 document a long history of alcohol and cocaine dependence. In a VA examination report dated April 2003, the VA examiner diagnosed the Veteran with uncontrolled hypertension and microalbuminuria reflecting early kidney disease from hypertension. Private treatment records from the Highlands Alameda County Medical Center demonstrate that, following an altercation with police and subsequent loss of consciousness, the Veteran was admitted to that facility in July 2003. Specifically, a consultation report dated in July 2003 indicated that the Veteran was involved in a scuffle with police and found to have crack cocaine in his mouth. During the course of the altercation, the Veteran went into pulseless electrical activity [PEA] arrest. Following emergency room treatment and hospital admission, the Veteran was diagnosed with anoxic encepatholopathy and respiratory distress. The medical evidence of record demonstrates that the Veteran is currently diagnosed with right arm hemiparesis, left leg hemiparesis, and occipital blindness which have been identified as residuals of the July 2003 incident of PEA during the cardiopulmonary arrest. See, e.g., the VA neurological examination report dated February 2004 and the letter from Dr. S.K. dated June 2005; see also the IME opinion received February 2011. Accordingly, the Veteran has current disabilities. As discussed above, the Veteran is now service-connected for hypertension. The remaining question is whether there is a link between the current residuals of the July 2003 cardiopulmonary arrest and the service-connected hypertension. As indicated above, the Veteran contends the July 2003 cardiopulmonary arrest and resulting residuals are proximately due to his hypertension. See the March 2009 Board hearing transcript. In a February 2004 letter, Dr. D.Z. reported that the Veteran had been diagnosed with hypertension since his military service for which he was prescribed medication. Dr. D.Z. concluded, "[i]t is my opinion that [the Veteran's] hypertension played a major role in the anoxic event suffered [in July] 2003." Similarly, in a letter dated June 2005, Dr. S.K. indicated that the Veteran suffered residual problems following cardiopulmonary arrest. He further stated that the Veteran "is known to have high blood pressure which is likely to have contributed to his condition." Critically, the statements of Dr. D.Z. and Dr. S.K. are of little probative value as both provided scant rationale for their purported conclusions. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (the Court has held that examiners must support their conclusions with analysis and clinical data); Hernandez-Toyens, 11 Vet. App. 379, 382 (1998) (holding that the failure of a physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence). Moreover, the Board observes that neither physician commented on the Veteran's history of substance abuse, in particular in connection with the incident which led to his July 2003 hospitalization. Also of record is a May 2004 VA medical opinion in which the reviewing physician reported that "[t]he C-file does not contain information implying that hypertension caused PEA in his case. The patient did not suffer an [myocardial infarction], his EKG afterward was normal, and no evidence of hypertensive cardiomyopathy is present in the C-file. His blood pressure was moderately controlled in prior exams . . . On the other hand, cocaine use is very highly associated with PEA in animal and human studies." He concluded, "the etiology of PEA in this case is unknown and therefore I do not have enough information to causally associate hypertension with [the Veteran's] current disability." Thus, the VA physician was unable to offer a conclusive opinion as to the issue of medical nexus. Accordingly, based upon the inadequate and conflicting medical evidence, the Board requested an IME opinion in September 2010 in order to determine whether the Veteran's currently diagnosed residuals of the July 2003 cardiopulmonary arrest were proximately caused or aggravated by his service-connected hypertension. Crucially, in an opinion received February 2011, the IME concluded that "[g]iven the Veteran's medical history, it is at least likely that his service-connected hypertension caused or contributed to the July 2003 medical emergency and/or the resulting hemiparesis and blindness." He explained, "[c]ertainly, this Veteran's hypertension was not optimally controlled, and the reason for this may have been continued and chronic abuse of illicit drugs. Regardless, I consider his underlying condition as a co-morbidity, and it certainly could have made the insult that he suffered on July 2003 worse, regardless of the etiology of the actual insult itself." Additionally, pursuant to the Board's instructions, the IME discussed the opinions rendered by Dr. D.Z. and Dr. S.K. As to Dr. D.Z.'s opinion, he stated "[w]hether or not the hypertension played a major role or not I believe is irrelevant, I do believe that it did play a role and that his hypertension was at least likely caused or contributed to the July 2003 medical emergency." Regarding Dr. S.K.'s opinion, the IME indicated "I completely agree with this statement. The Veteran's known hypertension is likely to have contributed to his condition, in regards to the suffered residual problems following cardiopulmonary arrest." The IME also discussed the May 2004 VA medical opinion; specifically, the IME opined, "I believe that a combination of substance abuse and hypertension contributed to this patient's condition after the July 2003 medical emergency. Certainly, moderately controlled hypertension can be considered a co-morbidity, especially if it has continued over a significant period of time." He continued, "[a]dditionally, I will say that without a history of substance abuse, it would be difficult to causally link the patient hypertension with the PEA arrest, but with the combination of cocaine and hypertension, I am confident in saying that the patient's hypertension caused or contributed to the July 2003 medical emergency." The February 2011 IME's opinion appears to have been based upon thorough review of the record and thoughtful analysis of the Veteran's entire history and current medical conditions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Moreover, the opinion is consistent with the medical evidence of record which documents the Veteran's contributing history of uncontrolled hypertension and substance abuse. See the VA examination report dated April 2003; see also the Highland Alameda County Medical Center treatment records dated July 2003 to August 2003. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim, to include a thorough and adequate VA examination. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In the present case, there is a positive nexus opinion from the IME who reviewed of the record, and considered the Veteran's credible history and medical conditions. While the IME admitted that the Veteran's substance abuse likely contributed to the July 2003 cardiopulmonary arrest, he explicitly stated that the service-connected hypertension also proximately caused or contributed to the July 2003 medical emergency and the development of the residuals. Therefore, resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran's currently diagnosed cardiopulmonary arrest residuals including right arm hemiparesis, left leg hemiparesis, and occipital blindness are proximately due to his service-connected hypertension. The benefit of the doubt rule is accordingly for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). Therefore, for reasons and bases expressed above, the benefits sought on appeal are granted. ORDER Entitlement to service connection for residuals of July 2003 cardiopulmonary arrest, including right arm hemiparesis, left leg hemiparesis, and occipital blindness, is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs