Citation Nr: 1237692 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 07-22 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a heart disorder, diagnosed as coronary artery disease (CAD) and arteriosclerotic heart disease (ASHD), including as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, including as secondary to service-connected PTSD. REPRESENTATION Veteran represented by: Michael R. Viterna, attorney ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active duty from October 1951 to September 1953 and received, in part, a Purple Heart for such service. These claims come before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. They are advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). In a decision issued in September 2008, the Board denied the Veteran's claims. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2009, based on a Joint Motion For Remand (joint motion), the Court remanded the matter to the Board for compliance with instructions in the joint motion. In August 2009, the Board in turn remanded these claims to the RO for additional action. A review of the Virtual VA paperless claims processing system reveals no additional documents pertinent to these claims. FINDINGS OF FACT 1. The Veteran's heart disorder, diagnosed as CAD and ASHD, is related to his service-connected PTSD. 2. The evidence is in relative equipoise regarding whether the Veteran's hypertension is related to his service-connected PTSD. CONCLUSIONS OF LAW 1. A heart disorder, diagnosed as CAD and ASHD, is proximately due to or the result of service-connected PTSD. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2011). 2. Resolving reasonable doubt in the Veteran's favor, hypertension is proximately due to or the result of service-connected PTSD. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notice under VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). In this case, the RO provided the Veteran VCAA notice on these claims by letters dated November 2006, October 2007, February 2008 and May 2008. With regard to content and timing, these letters reflect compliance with pertinent regulatory provisions and case law, noted above. The first letter, which the RO sent prior to initially adjudicating these claims, includes all necessary information. Therein, the RO acknowledged the Veteran's claims, notified him of the evidence needed to substantiate those claims, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated that it was developing his claims pursuant to that duty. The RO also provided the Veteran all necessary information on disability ratings and effective dates. It identified the evidence it had received in support of the Veteran's claims and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified the source(s) thereof. The RO also noted that, ultimately, it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. B. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011). The RO in this case made reasonable efforts to identify and obtain relevant records in support of the Veteran's claims. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). It asked the Veteran to identify and authorize the release of all treatment records dating back to 1953, but the Veteran did not comply. The RO was thus constrained to secure and associate with the claims file the evidence available to VA without authorization, including the Veteran's service medical records and post-service VA treatment records. The RO also afforded the Veteran VA examinations and obtained medical opinions in support of these claims. The reports of these examinations and opinions, read alone, are arguably inadequate to decide the claim for service connection for hypertension. However, read collectively, they suffice, resulting in a grant of the claim. Given this fact, the Board's decision to proceed in adjudicating the claim is harmless, not affecting the essential fairness of the adjudication. Conway v. Principi,353 F.3d 1369 (Fed. Cir. 2004); Bernard v. Brown, 4 Vet. App. 384 (1993). II. Contentions The Veteran contends that he developed hypertension and cardiovascular disease secondary to his service-connected PTSD. In support of this assertion he has cited to or submitted articles discussing the relationship between stress, a component of PTSD, and hypertension and arteriosclerosis, and establishing that PTSD is an independent risk factor for coronary heart disease and associated with an increased risk of multiple medical problems, including hypertension. The Veteran's representative argues that the evidence in this case is, at the very least, in relative equipoise. He points out that there are two favorable medical opinions of record, evidence that the RO neither acknowledged, nor considered in last denying the Veteran's claim. He contends that the unfavorable medical opinions of record are inadequate; one is prepared by a nurse, not a cardiologist, contrary to the Board's instructions on remand, and none includes a factual basis. III. Law Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2011). To prevail on the issue of service connection, there must be competent evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service 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 diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2011). To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id. at 498 (holding that, on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection may be presumed for certain chronic conditions such as cardiovascular-renal disease, which includes hypertension, if a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, and the condition manifested to a degree of 10 percent within one year of the date of discharge. 38 U.S.C.A. §§ 1101, 1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2011). IV. Analysis Post-service medical documents, including VA and private treatment records dated since 1998, letters from a private physician and reports of VA examinations conducted since February 2008, confirm that the Veteran currently has heart disease, variously diagnosed including as CAD and ASHD, and hypertension. The question is thus whether these disorders are related to the Veteran's active service, manifested to a compensable degree within a year of his discharge therefrom, or are related to his service-connected PTSD. The Veteran does not contend that these disorders are related to his active service and his service treatment records do not establish such a relationship. On induction examination conducted in October 1951, the Veteran had slightly elevated systolic pressure with a reading of 132/80, but during service, he did not express any cardiac complaints and no medical professional diagnosed a heart disorder, including hypertension. On separation examination conducted in September 1953, an examiner noted normal clinical evaluations of the Veteran's heart and vascular systems. Close to three decades later, in 1982, the Veteran had a heart attack and, since then, he has received treatment for heart disease and hypertension. Records of this treatment are dated beginning in August 1998 so, according to the available treatment records, cardiovascular-renal disease and hypertension did not manifest to a compensable degree within a year of the Veteran's discharge from service. There is favorable and unfavorable evidence of record addressing the possibility of a relationship on a secondary basis, between both the Veteran's heart disease and hypertension and his service-connected PTSD. The favorable evidence includes: (1) October 2007 and August 2008 written opinions of F.B., M.D., the Veteran's private cardiologist; (2) a July 2010 medical opinion of a VA examiner; (3) quotes from and actual fact sheets found at http://www.ncptsd.va.gov , the website of the National Center for PTSD, an organization whose aim is to advance the clinical care and social welfare of U.S. veterans through research, education and training on PTSD and stress-related disorders; (4) an article titled, "PTSD Independent Risk Factor for Heart Disease, Doubles Risk of Dying from Any Cause", found at www.usmedicine.com/cardiovascular/ptsd-independent-risk-factor-for-heart-disease; (5) an article titled, "Post-traumatic Stress Disorder, Coronary Atherosclerosis, and Mortality", found at http://www.ajconline.org/article/S0002-9149(11)01138-6/fulltext; (6) an article titled, "Is posttraumatic stress disorder related to development of heart disease? An update", found at http://www.ccjm.org/content/76/Suppl_2/S60.full; and (7) a quote from an article titled "Stress a risk factor for serious illness", found at Metabolism (supp.) 40-45 (June 15, 2002). The unfavorable evidence includes: (1) a February 2008 opinion of a VA examiner/cardiologist; (2) a June 2008 opinion of a VA examiner/nurse practitioner; and (3) a September 2011 opinion of a VA physician/examiner. The Board must assess the credibility and weight to be attached to medical opinions. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Court has held that a post-service reference to injuries sustained in service, without a review of service medical records, does not constitute competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). The Court has also held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record or with an inaccurate factual premise, see Miller v. West, 11 Vet. App. 345, 348 (1998) and Reonal v. Brown, 5 Vet. App. 458, 461 (1993), and that an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As well, the Court has held that a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not constitute competent medical evidence merely because the transcriber is a health care professional, see LeShore v. Brown, 8 Vet. App. 406, 409 (1995), and that a medical professional is not competent to opine as to matters outside the scope of his expertise. Id (citing Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Finally, the Court has held that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty, see Bloom v. West, 12 Vet. App. 185, 187 (1999), and that a medical opinion is inadequate when unsupported by clinical evidence, see Black v. Brown, 5 Vet. App. 177, 180 (1995). The Board assigns the VA examiners' February 2008 and June 2008 unfavorable opinions no evidentiary weight. The first is internally inconsistent as it notes that a relationship between the Veteran's cardiovascular condition, including hypertension, and service-connected PTSD "is less likely as not (50/50 probability)." It also notes that "it is less likely as not (50/50 probability)" that the Veteran's PTSD aggravated, contributed to or accelerated any existing cardiovascular disorder or cardiac pathology. The "less likely than not" standard is not the same as "50/50 probability". The first means that the relationship is, at most, 49 percent probable, mandating a denial. The second means the relationship is as likely as not, mandating a grant. In addition, both opinions are based on a faulty premise, namely, that VA does not consider PTSD a medically recognized risk factor in the development of hypertension and heart disease. As the parties to this appeal point out in their joint motion, to the contrary, the National Center for PTSD, which VA operates, has posted fact sheets on its website linking PTSD to poor cardiovascular health and to structural neurochemical changes in the central nervous system, which may directly affect health by making one vulnerable to hypertension and atherosclerotic heart disease. http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/fs_primary_care.html. As rationale for their February 2008 and June 2008 opinions, and contrary to these fact sheets, the examiners specifically found that there is no medical evidence supporting a relationship between PTSD and the development of hypertension and heart disease. The Board assigns the VA examiner's September 2011 unfavorable opinion and October 2007, August 2008 and July 2010 favorable opinions evidentiary weight. A. Heart Disease In the case of the claim for service connection for heart disease, a preponderance of the evidence is favorable with two medical professionals supporting the Veteran's claim and one abstaining from supporting or refuting it. The September 2011 unfavorable opinion carries the least evidentiary weight. In her September 2011 opinion, the examiner acknowledges and attaches an article discussing studies suggesting that PTSD plays a role in the development of coronary heart disease, but then indicates that there is no empiric data quantifying whether PTSD causes, contributes to, aggravates or accelerates coronary heart disease. Based on the absence of empiric data, she concludes that it would be speculative to offer any opinion on the causation of the Veteran's coronary heart disease. The private cardiologist's October 2007 and August 2008 favorable opinions carry more evidentiary weight. He acknowledges that PTSD is a risk factor for developing CAD, that stress in general is a risk factor for atherosclerosis, and that PTSD and stress can aggravate these conditions. Based on years of treatment of the Veteran and his expertise in cardiology, he offers an opinion that the Veteran has severe CAD with severe LV dysfunction and mitral regurgitation, which developed secondary to PTSD-aggravating atherosclerosis, and that the condition should be considered service connected. The basis of his opinion - PTSD being a risk factor in the development of CAD - is supported by the previously noted articles. The VA examiner's July 2010 favorable opinion also carries more evidentiary weight. He too acknowledges that PTSD is a risk factor for developing CAD and refers to medical literature indicating that high levels of stress produce increased cortisol, which in turn correlates with higher than normal cardiovascular difficulties. He then indicates that, given the Veteran's age (82) and the fact that he has had stress since the 1950s, when he engaged in combat, it is more likely than not that the PTSD contributed, aggravated, or accelerated the Veteran's cardiac pathology. Although the VA examiner did not provide a cite for the medical literature to which he referred, he provided rationale for his decision. And, as previously indicated, there are articles of record that contain the same information the VA examiner references. They confirm that: (1) stress, a component of PTSD, and PTSD are risk factors for serious illness, including hypertension and atherosclerosis; and (2) individuals with higher PTSD symptom levels, after controlling for known coronary risk factors, have a significantly increased coronary heart disease risk. Neither medical professional offered an opinion regarding the extent of the aggravation. In fact, the VA examiner indicated that it would be mere conjecture to do so. Given that their opinions relating the heart disease to the service-connected PTSD on an aggravation basis agree and are substantiated by the articles in the claims file, however, the Board finds that the Veteran's heart disorder, diagnosed as CAD and ASHD, is related to his service-connected PTSD. Based on this finding, the Board concludes that a heart disorder, diagnosed as CAD and ASHD, is proximately due to or the result of service-connected PTSD. B. Hypertension With regard to the Veteran's hypertension, the favorable versus unfavorable evidence is in relative equipoise. Dr. F. B. did not specifically discuss the Veteran's hypertension in his October 2007 and August 2008 opinions. Remaining then are the VA examiner's July 2010 favorable opinion, substantiated by the previously noted articles, and the VA examiner's September 2011 unfavorable opinion. The former is written by a clinical psychologist, the latter by a staff physician. According to the VA examiner/staff physician's unfavorable opinion, PTSD is known to cause episodic and temporary, rather than sustained, elevations of blood pressure, the latter constituting hypertension. In light of this fact, she opined that the hypertension is not at least as likely as not caused by the service-connected PTSD. She further opined that, due to an absence of medical literature, there is no evidence to support a claim for service connection on an aggravation basis. For the same reason noted above, the Board assigns the latter part of this opinion no evidentiary weight. The Board assigns the former part of this opinion limited evidentiary weight. In considering a relationship between the Veteran's hypertension and service-connected PTSD, the VA examiner/staff physician did not contemplate the fact sheets to which the parties to this appeal referred in their joint motion. http://www.ncptsd.va.gov/ncmain/ncdocs/fact_shts/fs_primary_care.html. As previously noted, these fact sheets relate PTSD to poor cardiovascular health and structural neurochemical changes in the central nervous system, which may directly affect health by making one vulnerable to hypertension and atherosclerotic heart disease. According to the VA examiner's July 2010 favorable opinion (which, in conjunction with all of the previously noted articles, the Board assigns equal weight), it is more likely than not that the Veteran's PTSD contributed, aggravated or accelerated his cardiac pathology. Although the examiner did not specifically refer to the Veteran's hypertension as being part of his cardiac pathology, he appeared to consider that condition as such, having discussed it earlier in his report. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Because the evidence is in relative equipoise with regard to the matter of whether the Veteran's hypertension and service-connected PTSD are related, the Board resolves it in the Veteran's favor. It concludes that hypertension is proximately due to or the result of service-connected PTSD. ORDER Service connection for a heart disorder, diagnosed as CAD and ASHD, secondary to service-connected PTSD is granted. Service connection for hypertension secondary to service-connected PTSD is granted. ____________________________________________ MICHAEL D. MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs