Citation Nr: 1131908 Decision Date: 08/30/11 Archive Date: 09/07/11 DOCKET NO. 03-21 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension, including as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for coronary heart disease, also including as secondary to the service-connected PTSD. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Biswajit Chatterjee, Associate Counsel INTRODUCTION The Veteran served on active duty in the military from December 1964 to December 1966. This appeal to the Board of Veterans' Appeals (Board) is from a July 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As support for his claims, the Veteran testified at a hearing at the RO in November 2004 before a local Decision Review Officer (DRO). In June 2009, the Board denied the Veteran's claim for an initial rating higher than 50 percent for his PTSD, but remanded his remaining claims for service connection for hypertension and coronary artery disease - including secondary to the PTSD, to the RO via the Appeals Management Center (AMC) for further development and consideration. This additional development, in particular, included having the Veteran undergo another VA compensation examination for additional medical comment on the likelihood his service-connected PTSD had either caused or aggravated his hypertension and coronary artery disease. The Veteran had this requested VA compensation examination in August 2009, and after considering the VA examiner's medical opinion, the AMC issued a supplemental statement of the case (SSOC) in November 2010 continuing to deny these remaining claims. Still additional medical comment is needed before deciding these remaining claims, however, so the Board is again remanding them to the RO via the AMC. REMAND As the Board previously explained in its June 2009 remand, the Veteran's sole theory of entitlement to service connection for his hypertension and coronary artery disease (CAD) is that they are secondary to his already service-connected PTSD, meaning either caused or chronically aggravated by the PTSD. 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). And since there was at least some suggestion these conditions may have been associated with his service-connected PTSD, on this claimed secondary basis, but insufficient competent medical evidence on file for the Board to have made a sufficiently definitive determination in this regard, the Board directed that he undergo another VA compensation examination for additional medical comment on this determinative issue. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination is required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of the claimed disability or of persistent or recurrent symptoms of the claimed disability, but does not require competent evidence of nexus, only that the evidence suggest an association between the disability and service or a service-connected disability). In this particular instance, the Veteran had undergone a January 2005 VA examination that had resulted in an opinion that it was unlikely his heart disease was caused by his PTSD. Unfortunately, that examiner had not also commented on whether the PTSD had alternatively aggravated the hypertension and CAD. Moreover, that examiner had in other portions of his report provided statements both supporting and opposing this notion of aggravation of the heart disease by the service-connected PTSD. On the one hand, he had stated there is scientific literature of a possible link of PTSD to heart disease, but that it is unknown whether patients with PTSD have an increased risk of CAD. He then had added that the Veteran had several risk factors that are known to increase the risk of CAD, such as male gender and age, hyperlipidemia, alcohol, tobacco and drug abuse. That January 2005 VA examiner also did not provide any opinion regarding the Veteran's claimed hypertension in terms of whether it, too, was secondary to his PTSD, having instead concluded the Veteran did not have hypertension (so, obviously, no means of relating this non-existent condition to his PTSD). But there was more recently dated evidence in the file confirming he has hypertension. Consequently, medical comment was needed on the possibility of any linkage between his hypertension and PTSD. The additional VA examiner that has since evaluated the Veteran in August 2009 for further medical comment on these determinative issues concluded the Veteran's CAD and essential hypertension were "unlikely to be as the result of or aggravated by PTSD." The stated rationale was that PTSD is not a risk factor for hypertension and CAD. But as even the prior January 2005 VA examiner readily acknowledged, VA has even on its own Internet website recognized there is at least some evidence indicating that PTSD is related to cardiovascular disorders, so endorsing such a relationship or correlation, and studies have found an association between PTSD and poor cardiovascular health. See www.ptsd.va.gov/professional/pages/ptsd-physical-health.asp. Therefore, if, as here, the basis for a negative nexus opinion is that there is no support in the medical literature for any connection between PTSD and CAD, it should be considered whether another opinion is required. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). And see Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The AMC also needs to confirm there are no outstanding treatment records, such as at the local VA Medical Center (VAMC) in Nashville, Tennessee. According to the treatment records currently in the file, the Veteran was last seen there in December 2006. That was over 41/2 years ago, so he very well may have received treatment there or elsewhere more recently. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (indicating VA has constructive, if not actual, notice of this additional evidence because it is generated within VA's healthcare system). So any additional treatment records that are potentially relevant would need to be obtained before deciding his appeal. See 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(2), (c)(3) (2010). Accordingly, these claims are again REMANDED for the following additional development and consideration: 1. Ask the Veteran whether there are any additional VA or private treatment records that need to be obtained and considered in his appeal, including from the VAMC in Nashville, Tennessee. If there are, and he provides the necessary information, obtain these additional records, including any from the Nashville VAMC dated since December 2006. If these or any other requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c) and (e). 2. After completing the requested development in action paragraph #1, return the claims file to the examiner that performed the August 2009 VA compensation examination for clarification. In particular, ask that he discuss the underlying rationale for concluding the Veteran's PTSD did not cause or aggravate his hypertension and CAD. To this end, merely stating, as he did previously, that "PTSD is not a risk factor for hypertension and CAD" will not suffice because VA has even on its own Internet website recognized there is at least some evidence indicating that PTSD is related to cardiovascular disorders, so endorsing such a relationship or correlation, and studies have found an association between PTSD and poor cardiovascular health. See www.ptsd.va.gov/professional/pages/ptsd-physical-health.asp. Therefore, if, for example, this examiner believes there are more likely causes of the Veteran's hypertension and CAD (e.g., his male gender and age, hyperlipidemia, alcohol, tobacco and drug abuse), then there must be some explanation as to why these other notable factors, and not the PTSD, are the more likely reasons he has hypertension and CAD and why his PTSD has not alteratively aggravated his hypertension and CAD. If, for whatever reason, this examiner is not available to provide this further comment, have someone else equally qualified provide this clarifying opinion. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion. Whomever provides this supplemental comment is encouraged to review the claims file for the pertinent medical and other history, including a copy of this remand and the Board's prior June 2009 remand. 3. Then readjudicate the claims in light of the additional evidence. If these claims are not granted to the Veteran's satisfaction, send him another SSOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these remaining claims. The Veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).