Citation Nr: 1317383	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  09-17 677	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for hypertension, including as secondary to or as aggravated by service-connected prostate cancer.


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran had active duty from June 1970 to February 1973. 

This claim comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.   

The Veteran testified in support of this claim during a video conference hearing held before the undersigned Veterans Law Judge (VLJ) in April 2012.  In August 2012, the Board remanded this claim to the RO for additional action.

The Virtual VA paperless claims processing system (Virtual VA) reveals pertinent documents that are not in the claims file, but which the RO considered in its supplemental statement of the case (SSOC) issued in March 2013.


FINDING OF FACT

The Veteran's nonservice-connected hypertension is aggravated by his service-connected prostate cancer, depression and erectile dysfunction with Peyronie's disease. 


CONCLUSION OF LAW

An increase in the Veteran's nonservice-connected hypertension is proximately due to or the result of service-connected prostate cancer, depression and erectile dysfunction with Peyronie's disease.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. 

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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

However, given the disposition of this claim, to proceed in adjudicating it is harmless and nonprejudicial to the Veteran and does not affect the essential fairness of the decision. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Bernard v. Brown, 4 Vet. App. 384, 390-92 (1993). 

Analysis

The Veteran seeks service connection for hypertension on an aggravation basis, as secondary to his service-connected prostate cancer.  He claims that, although his hypertension preceded his prostate cancer, once he began undergoing treatment for the cancer, his blood pressure readings became erratic and his hypertension difficult to control.  He points out that, after his February 2007 radical retropubic prostatectomy and August 2007 radiation therapy, he experienced fatigue, urinary frequency, incontinence, sexual dysfunction, Peyronie's disease and anxiety/depression.  Coupling these conditions with the uncertainty of his prognosis, he allegedly could not eat, drink or sleep properly or manage his farming operation and his blood pressure increased.  

He asserts that, during the following four years, his physician, James S. Gerber, M.D., and VA physicians prescribed various dosages of his initial medication and different types of medication in an effort to control his hypertension, but the medications caused certain side effects, including urinary frequency and incontinence.  The Veteran asserts that since 2011 his blood pressure has remained at acceptable but not perfect levels (140s/90s) with minimal aggravation of his urinary frequency and incontinence.    

He contends that his PSA levels are rising at unacceptable rates and that he has been encouraged to start hormone therapy.  Considering these lay statements in conjunction with all other pertinent evidence in the claims file, particularly Dr. Gerber's January 2009 opinion, the Board finds that the evidence supports a grant of this claim on the basis that the Veteran's nonservice-connected hypertension is aggravated by his service-connected prostate cancer, depression and erectile dysfunction with Peyronie's disease. 

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) (2012). 

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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  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); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises or authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

If a chronic disease is shown in service, subsequent manifestations of the same disease, 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."  38 C.F.R. § 3.303(b).

When certain chronic diseases are at issue, such as cardiovascular-renal disease, including hypertension, or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology.  Evidence of 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.  38 C.F.R. 
§ 3.303(b).  

Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between the present disability and the post-service symptomatology.  Walker, supra. 

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) (2012).

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, not to the natural progress of the nonservice-connected disease or injury.  VA will not concede service connection in such a case 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 non-service connected disease or injury.  38 C.F.R. § 3.310(a) (2012); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  

A claim for service connection on a secondary basis requires medical evidence that connects the asserted secondary disorder to the service-connected disability.  Velez v. West, 11 Vet. App. 148, 158 (1998).  More specifically, to establish entitlement to service connection on a secondary basis, the claimant must submit: (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).

Service connection may be presumed for certain medical conditions such as cardiovascular-renal disease, including hypertension, if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

In this case, post-service medical documents, including VA and private treatment records dated since the Veteran filed his claim, reports of VA examinations conducted in September 2008, February 2009 and February 2013, and Dr. Gerber's January 2009 written opinion, establish that the Veteran currently has hypertension, first diagnosed in 2003.  The question thus becomes whether this disability was incurred in or aggravated by service, or as alleged, is aggravated by the Veteran's service-connected prostate cancer and other related service-connected disabilities. 

The Veteran was not diagnosed with hypertension during active service.  Medical professionals checked his blood pressure on multiple occasions between December 1968 and February 1973 and all readings were normal, ranging from 104/68 to 138/78.

In December 2002, Dr. Gerber noted that the Veteran had had labile blood pressure changes, which had not been treated.  On that date the Veteran had blood pressure of 150/90.  In December 2003, the Veteran presented claiming that his blood pressure had always been kind of borderline and that, during the holidays, it was 200/110.  The physician noted blood pressure of 160/70 and 144/94, diagnosed labile with probably mildly elevated hypertension, and prescribed a half of a 25 mg. tablet of blood pressure medication.  

Initially after first being prescribed medication, the Veteran's blood pressure remained high during medical visits (as high as 158/90 and 160/80).  He submitted a diary, however, which showed improvement at home with multiple systolics in the 120s and 130s.  From April 2004 to June 2006, doctors noted that the Veteran had good or great control of his hypertension (described during treatment visits as a lot of 114 to 120 systolics with only a couple in the 130s and diastolics between 75 and 80).

In December 2006, a physician diagnosed the Veteran with prostate cancer, a disease that necessitated a radical retropubic prostatectomy in March 2007.  Thereafter the Veteran developed urinary urgency and frequency, depression, erectile dysfunction and Peyronie's disease and began to exhibit higher blood pressure readings, including 160/85 and 166/93.  From August 2007 to October 2007, he underwent radiation therapy.  Medical professionals, including Dr. Gerber, VA personnel and a VA examiner in May 2008, then noted systolics ranging from the mid-130s to 160 and diastolics ranging from the mid 80s to 90.  The Veteran also had some normal blood pressure readings, but not often.  His blood pressure remained erratic and at this level (high more often than not) through January 2009. 

Effective February 2007 and March 2008, respectively, the RO granted the Veteran service connection for prostate cancer and depression associated with the cancer, and erectile dysfunction with Peyronie's disease, also associated with the cancer.  Service connection remains in effect for these conditions.

As of September 2008, when the Veteran underwent a VA hypertension examination, he was still taking half of a 25 mg. tablet of blood pressure medication.  The examiner noted that the Veteran was not taking any other medication, including for purposes of cancer treatment, which might elevate his blood pressure.  The day of the examination, the Veteran had blood pressure of 155/94, 162/96 and 152/83.

In 2009 and 2010, during VA outpatient visits, physician noted that the Veteran's blood pressure remained elevated on his current medication.  They added another medication for better control.  Thereafter, the blood pressure remained erratic, intermittently normal, but sometimes as high as 156/72, 154/84 and 153/91.  

From June to December 2010, VA physicians noted that the Veteran had stable hypertension.  In September 2010, the Veteran's PSA levels revealed recurrent prostate cancer.  Doctors recommended hormone ablation as treatment, but not a cure. 

In 2011, the Veteran's blood pressure varied with some normal readings and some high readings of 142/80 and 148/92.  As of December 2011, the Veteran was considering undergoing hormone ablation.

Multiple medical professionals have addressed the etiology of the Veteran's current hypertension.  In September 2008, the VA examiner ruled out a relationship between the Veteran's hypertension and prostate cancer.  He based his opinion on the following findings: (1) the Veteran's hypertension predated his prostate cancer by three to four years; (2) the Veteran is not taking any medication for prostate cancer that would be expected to elevate and aggravate his blood pressure; and 
(3) prostate cancer is not a known cause of hypertension and does not predispose an individual to developing hypertension. 

In January 2009, Dr. Gerber, who first diagnosed the Veteran with hypertension in 2003 and whose records, dated since 2002, are in the claims file, opined that the Veteran's blood pressure has been aggravated by his prostate cancer diagnosis, surgery and subsequent treatment, his depression/anxiety/sleep loss and impotence, with its own psychological adjustment, and possibly the Peyronie's disease.  He based this opinion on the following findings: (1) prior to the diagnosis of prostate cancer, the Veteran had no major health issues, but rather, minor health problems attributable to his age and the physical demands of farming; (2) he had essential hypertension since 2003 that was well controlled on small doses of diuretics for four years; (3) hypertension usually occurs in 90 to 95 percent of the American population of the Veteran's age group; (4) with the discovery of the Veteran's prostate cancer, repeat blood pressures began to rise and the Veteran suffered significant co-morbidities with his surgery and radiation, including depression, anxiety, sleep disturbances, and impotence, the latter causing a grief reaction; 
(5) the Veteran's blood pressure became erratic, necessitating referral to a psychiatrist and the use of medication for mental health; and (6) no other overriding health problems appear to be present and causing the increased blood pressure.

In February 2009, a VA examiner/nurse practitioner opined that it is less likely than not that the Veteran's hypertension is aggravated by his treatment for prostate cancer.  She based his opinion on the following findings: (1) human studies of stress and its relationship to coronary atherosclerosis are limited in scope and, although there are many correlations and associations between the two, per a medical records review, there is no definite link between stress and the development or aggravation of hypertension; (2) it is well known that stress transiently elevates blood pressure in individuals, but this is a normal response to catecholamine release and such temporary elevation does not aggravate or cause the underlying hypertension; (3) the Veteran was diagnosed with hypertension in 2003 and is still taking the same medication and dosage for its treatment; (4) the dosage has not been changed for the better management of the hypertension; and (5) the Veteran is not currently receiving any treatment for prostate cancer. 

In February 2013, a VA examiner/physician reviewed the claims file and opined that the Veteran's hypertension is less likely than not incurred in or caused by an in-service injury or illness, proximately due to or the result of, or aggravated beyond its natural progression by, the Veteran's service-connected condition.  He based this opinion on the following findings: (1) there are no medical records in the claims file that the Veteran had hypertension during service; and (2) there is no medical literature indicating that prostate cancer is a cause or risk factor for hypertension.

Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions.  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). 

In this case, the Board places no evidentiary weight on the VA examiner's February 2013 opinion.  The VA examiner provides rationale for his conclusion that the Veteran's hypertension is not due to service or his service-connected prostate cancer (no in-service diagnosis of hypertension and no medical literature indicating that the cancer is a cause or risk factor for hypertension), but not for his conclusion that the hypertension is not aggravated beyond it normal progression by the cancer.  In addition, although he claims that he reviewed the claims file, he did not mention the treatment records showing erratic blood pressure readings since the cancer diagnosis or any of the other medical opinions on the matter, favorable or unfavorable.  In fact, he did not cite to any pertinent documents of record.

The Board places some evidentiary weight on the VA examiners' September 2008 and February 2009 opinions.  The September 2008 VA examiner provided rationale for ruling out a relationship between the Veteran's hypertension and prostate cancer, which primarily speaks to the matter of whether the hypertension is proximately due to the cancer (hypertension predated prostate cancer by three to four years and such cancer is not a known cause of hypertension and does not predispose an individual to developing hypertension).  He also provided rationale for his conclusion that the cancer did not aggravate the hypertension (Veteran is not taking any medication for prostate cancer that would be expected to elevate and aggravate his blood pressure), but that rationale is based on a faulty premise.  According to the Veteran's private physician, he is on medication for mental health problems, medication that might or might not affect his hypertension.  In any event, the VA examiner did not discuss whether anything other than drugs might be elevating the Veteran's hypertension such as the symptoms of his various service-connected disabilities.  Such a discussion is crucial given that the treatment records in the claims file show erratic blood pressure readings since the cancer diagnosis.  

The February 2009 VA examiner's opinion is well reasoned and supported by rationale, but too is based on a faulty premise.  She indicated that stress can transiently elevate blood pressure in individuals, but that such temporary elevation does not aggravate or cause the underlying hypertension.  Here, however, the Veteran is still exhibiting erratic blood pressure readings, approximately five years after the diagnosis.  Moreover, the cancer has recurred, which means he is likely to experience continued erratic blood pressure readings secondary to the effects of the cancer.  The VA examiner also found that the Veteran is still taking the same medication and dosage for hypertension treatment, a fact that the treatment records show is untrue.

The Board places the greatest evidentiary weight on Dr. Gerber's January 2009 opinion.  It is based on his extensive knowledge of the Veteran's health status from 2002, substantiated by an accurate accounting of the medical evidence, and supported with rationale. 

Although not always dispositive, the assessment of a treating physician must be assessed. Guerreri, supra. Further, a grant of service connection does not require a certainty of proof, but only an approximate balance. Here, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A. § 5107(b) (West 2002); Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993) (under the "benefit-of-the-doubt" rule, 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 claimant shall prevail upon the issue).

Based primarily on Dr. Gerber's opinion, but also on the treatment records showing that the Veteran has had erratic blood pressure readings since his cancer diagnosis and that the cancer has recurred, and because there is medical evidence of record establishing a baseline for the Veteran's hypertension prior to the cancer diagnosis, the Board finds that the Veteran's nonservice-connected hypertension is aggravated by his service-connected prostate cancer, depression and erectile dysfunction with Peyronie's disease.  In light of this finding, the Board concludes that an increase in the Veteran's nonservice-connected hypertension is proximately due to or the result of service-connected prostate cancer, depression and erectile dysfunction with Peyronie's disease.  

The RO will assign an appropriate disability rating in the first instance through application of the appropriate VA rating protocols involving service connection for aggravation of non-service-connected disorders by service-connected disorders. 


ORDER

Service connection for hypertension, as aggravated by service-connected prostate cancer, is granted.


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs