Citation Nr: 1317637 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 05-25 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension, as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), as secondary to service-connected PTSD. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from July 1966 to July 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2009, the Board remanded this claim to schedule the Veteran for a hearing before the Board. The hearing was conducted in May 2010 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In September 2010 the Board reopened the Veteran's previously denied claims of entitlement to service connection for hypertension and GERD secondary to PTSD and remanded for further development. In September 2012 and December 2012 the Board sent the Veteran's claims file for a VHA medical opinion. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records; these have been reviewed by the RO as documented in the June 2012 supplemental statement of the case (SSOC) and by the Board. FINDINGS OF FACT 1. Extending the benefit of the doubt to the Veteran his hypertension is secondary to his service-connected PTSD. 2. Extending the benefit of the doubt to the Veteran his GERD is secondary to his service-connected PTSD. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the Veteran, his hypertension is secondary to the service-connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a) (2012). 2. By extending the benefit of the doubt to the Veteran, his GERD is secondary to the service-connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claims on appeal, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. §§ 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. The presumptions for diseases related to Agent Orange exposure are codified in 38 U.S.C.A. § 1116 and 38 C.F.R. §§ 3.307 and 3.309, based on an analysis of scientific evidence. However, the presumption only exists for those diseases listed in 38 C.F.R. §§ 3.307 and 3.309(e). The Agent Orange Act of 1991 directed the Secretary of the Department of Veterans Affairs to seek to enter into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in the Republic of Vietnam and each disease suspected to be associated with such exposure. The Secretary determined, based on sound medical and scientific evidence, that a positive association (i.e., where the credible evidence for the association was equal to or outweighed the credible evidence against the association) existed between exposure to an herbicide agent and the disorders listed in the statute. See 64 Fed. Reg. 59232, 592233 (Nov. 2, 1999). The Secretary of Veterans Affairs has determined that there is no presumptive positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41, 442-449 and 61 Fed. Reg. 57, 586-89 (1996); Notice, 64 Fed. Reg. 59, 232-243 (Nov. 2, 1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that his current diagnoses of hypertension and GERD are secondary to his service-connected disabilities, including the medications for his service-connected disabilities. After a careful review of the Veteran's claims file the Board finds that by granting the Veteran the benefit of the doubt service connection for both hypertension and GERD is warranted on a secondary service connection basis. The Veteran's service treatment records do not contain any complaints of or treatment for GERD, hypertension, or their associated symptoms. However, the Veteran's service personnel records document that he served in the Republic of Vietnam during the Vietnam War. He is therefore presumed to have been exposed to Agent Orange during his active military service. In a September 2007 the Veteran was seen for private treatment for evaluation of a dry hacking cough with hoarseness. He was undecided about surgery to correct his hiatal hernia and complained of PTSD. He had concerns that his PTSD affected his blood pressure and reflux. The private physician opined that there is a correlation between PTSD and reflux. It was noted that the Veteran's reflux started since he was diagnosed with PTSD. In May 2008, a private physician opined that the Veteran's GERD and hypertension were directly related to his PTSD. In May 2010, a private physician stated that any kind of stress can impact hypertension and make it difficult to control blood pressure and can also affect GERD. In February 2011 the Veteran was afforded a VA examination for his hypertension and GERD. Following a physical examination of the Veteran and a review of the Veteran's medical records, the VA examiner determined that the Veteran's current hypertension was less likely as not (less than 50/50 probability) caused by or a result of his service-connected PTSD. The examiner referred to the medical literature in forming his opinion. In February 2012, the claims were sent out for another VA medical opinion. However, the claims file was not provided to the VA examiner. Therefore, the examiner did not provide a medical opinion. Instead, the examiner concluded that she could not resolve this issue without resorting to mere speculation, since she did not have the claims file to review. Another VA medical opinion was obtained in May 2012. Following a physical examination of the Veteran and a review of the Veteran's claims file, the VA examiner determined that the Veteran's current hypertension was less likely as not (less than 50/50 probability) related to or aggravated by his service-connected PTSD. The VA examiner also found that the Veteran's current GERD was less likely as not related to or aggravated by his service-connected PTSD. The examiner referred to the medical literature in forming his opinions. In September 2012 the Board requested VHA medical opinions for both issues on appeal. In October 2012 a VHA opinion was rendered on the Veteran's hypertension. It was determined that there was no documentation that the Veteran's hypertension had an onset during military service. It was also stated that there was less than a 50 percent probability that the Veteran's hypertension was causally related to in-service presumed herbicide exposure. Part of the rationale was that one third of all adults have hypertension and because it is so common it would be nearly impossible to determine if herbicide exposure was the "culprit in any one Veteran. The VHA examiner stated that exposed Vietnam Veterans had a significantly higher rate of PTSD compared to a control group and this may be a surrogate for stress levels to which Agent Orange exposed Veterans were subjected to as opposed to herbicide exposure per se. He then concluded that it is less likely than a 50 percent probability that PTSD is causally related to in-service presumed herbicide exposure. He also opined that although it is commonly accepted that the incidence of hypertension is increased in patients with PTSD there is no quantification within this subgroup regarding the contribution that PTSD makes on the severity of hypertension or its management. General medical knowledge and the known catacholaminergic response to stress dictate that stress from any cause would have a direct impact and the management of hypertension with a probability of greater than 50 percent. In January 2013 the VHA medical expert provided an addendum opinion; he stated that it was less likely than not that the Veteran's hypertension had its onset during active military service it was in any way causally related to his active military service, was causally related to the presumed, in-service herbicide exposure, was due to or the results of any of his service-connected disabilities, or permanently aggravated by his service-connected disabilities (to not include PTSD) or their medications. However, he also stated that it was more likely than not that the Veteran's currently diagnosed hypertension was permanently aggravated by his service-connected PTSD. In November 2012 a VHA medical expert opinion was provided on the issue of entitlement to service connection for GERD. The VHA examiner stated that he did not review the Veteran's service treatment records and though the Veteran reported to a previous VA examiner that his GERD began on active duty he could not answer the question if the Veteran's GERD began during active military service. He also opined that it was less likely than not that the Veteran's GERD was proximately due to or the result of any of his service-connected disabilities, to include the medications required for his service-connected disabilities. He opined that it was likely that the Veteran's currently diagnosed GERD was permanently aggravated by his service-connected disabilities, to include the medication required for his service-connected disabilities. Generally, when a Veteran contends that a service-connected disorder has caused or aggravated a secondary disability, there must be competent medical evidence of such causation or aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994). To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, supra. After a careful and considered review of the medical and lay evidence of record, the Board observes that there are medical opinions of record (February 2011, May 2012, and October 2012) against the Veteran's claim and medical opinions (September 2007, May 2007, May 2010, November 2012, and January 2013) for the Veteran's claim. The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). The Board finds that the opinions for the Veteran's claims of service connection are more probative and service connection is warranted. First, the February 2012 VA examination is not probative because she did not provide any opinion since she "did not have access to the Veteran's claims file and it would be mere speculation." Medical opinion based on speculation, without supporting clinical evidence, does not provide the required degree of medical certainty and would be of no probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993). While, the February 2011 VA examiner provided an opinion on causation of the Veteran's hypertension he did not provide a medical opinion on the basis of aggravation for the Veteran's hypertension nor did he provide any opinion for the Veteran's claim of GERD. While the May 2012 VA examiner did provide a probative (negative) opinion that the Veteran's GERD and hypertension were not aggravated by the Veteran's PTSD with looking at the medical literature, the Board finds that the positive probative evidence of record outweighs the Veteran's one negative probative opinion of record (May 2012 VA examiner's opinion). In September 2007 the Veteran's private physician noted that the Veteran's reflux began after his PTSD and that there was a correlation between PTSD and reflux; thus, establishing a time line of the diagnoses. In May 2010 it was noted that stress can impact hypertension and make it difficult to control blood pressure and GERD. In addition, while the VHA medical expert stated in October 2012 that the Veteran's hypertension was not due to the Veteran's service-connected disabilities he stated in a January 2013 addendum opinion that it was at least likely as not that the Veteran's hypertension was aggravated by his PTSD. In addition, it was stated in November 2012 VHA medical expert opinion also stated that the Veteran's GERD was aggravated by his PTSD. The examiners provided competent medical reasons for their conclusions in accordance with the Wallin requirements. Thus, the Board finds that on the issue of whether the Veteran's hypertension and GERD were aggravated by his service-connected PTSD the Board finds that by granting the Veteran the benefit of the doubt service connection is warranted for both hypertension and GERD. After careful review of the record and consideration of all medical findings and opinions on file, and giving the benefit of any doubt to the Veteran, the Board finds the evidence for and against the claim to be at least in approximate balance. Under such circumstances, resolution of all reasonable doubt shall be in the Veteran's favor. Consequently, the Board concludes that service connection for both hypertension and GERD secondary to PTSD is warranted. ORDER Service connection for hypertension secondary to PTSD is granted. Service connection for GERD secondary to PTSD is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs