Citation Nr: 1316045 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 08-14 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for hypertension, to include as due to the service connected Hodgkin's disease and heart condition/pacemaker. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. In September 2011, the Board remanded the issue for a VA examination and opinion as to whether the hypertension is secondary to or has been aggravated by the service-connected heart condition/pacemaker. The Board also noted that the agency of original jurisdiction (AOJ) previously granted service connection for a heart condition without specifying the nature of the service-connected condition. On remand, the Board instructed that the AOJ prepare a rating decision that identified the disease or injury resulting in the heart condition. In April 2013, the Veteran's representative correctly pointed out that the AOJ in the subsequent rating decision in February 2012 only addressed entitlement to retroactive benefits under Nehmer for the issue of service connection for a heart condition/pacemaker. However, in light of the favorable disposition below, any lack of compliance with the Board's remand directives is mute. FINDING OF FACT Hypertension is proximately due to or the result of radiation therapy for the Veteran's service-connected Hodgkin's disease. CONCLUSION OF LAW Hypertension is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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. Legal Criteria Service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. 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 caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) . Facts In this case, the Veteran does not assert nor does the evidence show that hypertension became manifest in service or within one year of service. Rather, the Veteran asserts that his hypertension is secondary to his service-connected Hodgkin's disease status post splenectomy and heart condition/pacemaker. In November 2006, the Veteran' filed a claim of service connection for hypertension secondary to radiation therapy for his service-connected Hodgkin's disease. In his Form 9 Appeal received in April 2008, the Veteran claimed that hypertension is a late side effect of his treatment for Hodgkin's lymphoma. He referred to the Mayo Clinic website and Cancer Reference Information website which discussed damage done by radiation to blood vessels. He noted that both websites show that patients who have had radiation are at higher risk of developing coronary artery disease and heart problems. He also asserted that he has been treated with the chemotherapy drug Adriamycin which can cause heart damage and increases radiation therapy damage to the heart. During a RO hearing in November 2008, the Veteran testified that his hypertension developed in early 2006, after he had a pacemaker implanted in November 2005. He testified that there was a connection between his hypertension and pacemaker and the heart issues directly resulted from his treatment for Hodgkin's disease. He stated he received radiation therapy in 1991 and chemotherapy in 1993. The Veteran and his representative indicated his private doctor, Dr. C., opined that hypertension is the result of his heart disease. Private medical records show that in 1991 the Veteran had Hodgkins disease and was treated with radiation therapy. In 1993 he was treated with chemotherapy. The Veteran had a history of heart block and had a permanent pacemaker implanted in November 2005. The records show a diagnosis of hypertension in February 2006. On VA heart examination in August 2007, the impression included complete heart block with paced rhythm and hypertension. The examiner concluded that it is less likely that the Veteran's hypertension was related to Hodgkin's disease and subsequent chemotherapy as his blood pressure was well controlled and there was no evidence of end-organ damage. In a letter in December 2008, the Veteran's private examiner, Dr. N.Z., an oncologist and hematologist, noted that his Hodgkin's lymphoma has been treated with a combined modality treatment. He concluded that the Veteran's hypertension has been described as a late side effect from his cancer therapy. On VA heart examination in June 2009, the examiner noted that the Veteran had a history of arrhythmia with an atrioventricular (AV) block requiring a pacemaker. On VA examination in October 2011, the examiner noted that private medical records shows that the Veteran had some atypical chest pains soon after his pacemaker was inserted and started to take blood pressure medication. The examiner was of the opinion that the "weight of the medical literature does not support the contention that cardiac conduction abnormalities generally or AV block specifically as a residual of Hodgkin's disease treatment, nor the treatment of said conduction abnormalities by pacemaker insertion causes or aggravates hypertension." Analysis Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether the examiner was informed of the relevant facts. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran's lay statement that his hypertension is secondary to his service-connected Hodgkin's disease is competent and credible as the Veteran's private doctor in December 2008 concluded that his hypertension is a side effect from his cancer therapy for Hodgkin's disease. Lay evidence is competent when reporting a contemporaneous diagnosis. Jandreau v. Nicholson, 492 F3d. 1372, 1377 (2007). There are two conflicting medical opinions addressing whether hypertension is secondary to the service-connected Hodgkin's disease. Considering the relative merits of the analytical findings and the details of the opinions, the Board places more weight on the favorable private opinion in December 2008 than the August 2007 VA opinion. The August 2007 VA examiner did not address whether the radiation therapy the Veteran underwent for Hodgkin's disease in 1991 caused or aggravated his hypertension. Thus the VA opinion is not specific enough to be of significant probative value as the examiner did not address all aspects of the Veteran's treatment for Hodgkin's disease. Conversely, the private examiner, who is an oncologist and hematologist, concluded that the Veteran's hypertension was caused by his combined modality treatment for Hodgkin's lymphoma, which included radiation therapy. This opinion is consistent with the medical literature the Veteran has referenced during the appeal period. Moreover, it was based on the medical principles and applied to the all the salient facts in the instant case. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that the weight of the evidence supports the conclusion that the Veteran's hypertension is proximately due to or the result of the radiation therapy for his service-connected Hodgkin's disease and that service connection on a secondary basis must be granted. As the Board is granting service connection for hypertension secondary to Hodgkin's disease, the matter of whether hypertension is secondary to the service-connected heart condition/pacemaker need not be further addressed. ORDER Service connection for hypertension, to include as due to the service-connected Hodgkin's disease is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs