Citation Nr: 1319828 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 03-00 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE 1. Entitlement to service connection for a psychiatric disorder, encompassing depression and anxiety, to include as secondary to hepatitis C. 2. Entitlement to service connection for a heart disorder, including cardiomyopathy, to include as secondary to hepatitis C. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012) for additional heart disability due to VA treatment. [The issue of entitlement to service connection for hepatitis C is addressed in a separate decision.] REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1974 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2003 and March 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The section 1151 claim was previously remanded in July 2005. The Veteran appeared for a Travel Board hearing addressing these issues in April 2012. The issues of entitlement to service connection for a heart disorder, including cardiomyopathy, to include as secondary to hepatitis C; and entitlement to compensation under 38 U.S.C.A. § 1151 for additional heart disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has been diagnosed with depression and anxiety, and there is competent medical evidence indicating that these diagnoses were caused by both service and the service-connected hepatitis C. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, encompassing depression and anxiety, have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In regard to this service connection claim, the Board has considered whether VA has fulfilled its notification and assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's fully favorable disposition of the matter on appeal, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including psychoses, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As noted in a concurrent Board decision indicated above, the Board has granted service connection for hepatitis C, which the Veteran has asserted played a causal role resulting in a psychiatric disorder. In this regard, a disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA added revised provisions of 38 C.F.R. § 3.310(b) to conform the regulation to the holding of Allen during the pendency of this appeal. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). Under this revision, 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 VA's Schedule for Rating Disabilities (38 C.F.R., 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. 38 C.F.R. § 3.310(b). Because this revision is less favorable to the Veteran than the provisions in effect as of the receipt of his claim in August 2006, the prior version will apply. The Veteran's June 1974 service entrance examination and medical history reports are negative for any psychiatric disorders. During service, the Veteran was seen with complaints of "being nervous" in January 1975 after being hassled by another individual, and he requested "something to calm him down." Valium was prescribed. He was treated for complaints of nervous problems in May 1975 and diagnosed with mild anxiety. He later reported being depressed and considering suicide in May 1975, in conjunction with having taken qualudes and "smoking hash all day long." He was admitted to the ward and diagnosed with an overdose. His September 1975 discharge examination report is negative for any psychiatric disorders. Following service, a treatment record in March 1996 reflects that the Veteran was treated with Paxil, an antidepressant. Records beginning in October 1996 clearly indicate depression and paranoia/shakes. In an April 1999 statement, Lois A. Thompson, M.A., rendered a diagnostic impression of recurrent major depressive disorder and indicated that the combination of physical problems and characterological issues had amplified the Veteran's emotional reactivity to current stressors. The Veteran underwent a psychiatric examination in June 2000, via QTC Medical Services. The examiner noted the Veteran's increased anxiety upon learning of his hepatitis C infection, first noted in 1995. The examiner rendered an Axis I diagnosis of anxiety disorder, not otherwise specified, and noted that the Veteran had a persistence of anxiety related to his recently discovered Hepatitis C. The examiner felt that the Veteran "is not service connected for this disability but is moderately severely impaired because of it." The Veteran's depression was also addressed in a detailed August 2006 statement from Richard Fraser, M.D., who reviewed the Veteran's claims file. Dr. Fraser found that the Veteran's depression and anxiety, in his professional opinion, were service connected. Notably, there was no history of depression or psychiatric illness prior to entering the military. Before service, the Veteran described behaviors consistent with a personality disorder and was using illicit drugs, but there was no formal diagnosis of depression or anxiety disorder, or treatment prescribed. Upon enlistment, the Veteran answered negative to a history of psychiatric illness and was not taking antidepressant medications. In 1975, the documentation of record showed that he presented with suicidal ideations. This was the first incident documented of a problem with depression. The Veteran was evaluated and admitted for observation, along with treatment of his depression. A later progress note discussed the Veteran having anxiety, which was the first notation of this condition, and in Dr. Fraser's opinion this established "service relatedness" of his anxiety as well. Overall, there is competent medical evidence, based upon both examination and review of the treatment records of the Veteran, to support the finding that the Veteran's period of service and his service-connected hepatitis C contributed to cause his current psychiatric disorder, diagnosed as both depression and anxiety. There is no competent medical evidence to suggest the contrary for either etiological basis. Accordingly, under 38 C.F.R. §§ 3.303 and 3.310, the Board finds that service connection is established for this disability, and the claim is granted in full. ORDER Entitlement to service connection for a psychiatric disorder, to include as secondary to hepatitis C, is granted. REMAND Both of the Veteran's claims concerning disability compensation for a heart disability require additional development prior to a Board adjudication on the merits. First, the Board notes that there is evidence suggesting a possible etiological link between a current heart disability and the now-service-connected hepatitis C. Notably, in a July 2005 statement, James R. Cook, M.D., noted that the Veteran's cardiomyopathy was related to a viral infection and that, as he suffered active hepatitis C, this was "a likely culprit." In an August 2005 statement, J. Mark Peterman, M.D., a cardiologist, noted that the Veteran suffered from hypertrophic nonobstructive cardiomyopathy with a history of inducible ventricular tachycardia, status post implantable cardioverter-defibrillator (ICD) implantation. The etiology of his hypertrophic cardiomyopathy was undefined, but the differential diagnosis would include viral myocarditis etiologies including hepatitis C. Dr. Peterman thus found it "likely" that the Veteran's cardiomyopathy might well be related to hypertrophic manifestations of hepatitis C viral cardiomyopathy. Of particular note to the Board is the August 2006 opinion of Dr. Fraser, who found that the Veteran's cardiomyopathy "was due to hepatitis C and therefore a service-connected condition." In rendering this opinion, Dr. Fraser indicated that the diagnosis of myocarditis and viral cardiomyopathy can be made definitely only by a complicated diagnostic process of endomyocardial biopsy, implementing the World Health Organization/World Heart Federation criteria, and polymerase chain reaction (PCR) techniques for identification of viral genome. Dr. Fraser further noted that the fact that no arrhythmias were noted during stress testing does not preclude that the Veteran had a serious heart condition or an underlying heart problem; cardiac catheterization with electrophysiologic testing was needed to determine this. On the whole, the Board finds that there is evidence to suggest, at a minimum, cardiomyopathy as due to hepatitis C. Given the opinion of Dr. Fraser and the absence of a detailed VA examiner's opinion directly addressing this matter (e.g., the May 2008 VA heart examination report indicates merely that the Veteran "has no evidence for any dilated cardiomyopathy which is a hallmark typical cardiomyopathy related to [v]iral infections," without a detailed rationale or reference to Dr. Fraser's opinion), the Board finds that would be appropriate in this case to furnish the Veteran with an additional VA examination to more fully ascertain the following: 1) which heart disabilities (including but not limited to cardiomyopathy) have been present during the pendency of this appeal; and 2) which among those disabilities are causally related to the service-connected hepatitis C. See McClain v. Nicholson, 21 Vet App 319 (2007) (the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to the Secretary's adjudication of the claim). As to the section 1151 claim, the Board notes that two VA opinions (an addendum opinion from February 2006 and a VA examination opinion from May 2008) indicate that the criteria of section 1151 (e.g., additional disability due to such factors as carelessness, negligence, or similar instance of fault on the part of VA treatment providers) had not been met. Both opinions, however, appear to have been predicated on factually inaccurate information. Both examiners cited to an April 2000 VA cardiac stress test that reportedly revealed that the Veteran was able to exercise at 85 percent of his predicted maximum heart rate without significant atrial or ventricular ectopy. The actual report of this test, however, indicates the following: IMPRESSION: The patient was unable [emphasis added] to exercise to 85% of his predicted maximum heart rate. Up to a pulse rate of 115 beats per minute or 65% of his predicted maximum heart rate, no ischemic ST segment changes were noted. During this limited stress test, no atrial or ventricular ectopy of significance was noted. The Veteran's essential contention in this case is that the VA, during a period of treatment in early 2000, failed to take appropriate measures to treat his cardiac disability, given his signs and symptoms at the time. The suggestion in the VA opinions is that this was not the case, insofar as the Veteran was able to exercise at 85 percent of his predicted maximum heart rate without significant atrial or ventricular ectopy in April 2000, but the actual report of the study indicates that the Veteran was not able to meet this exercise threshold. Consequently, the VA examination opinions appear to be based upon a inaccurate factual predicate, and it is incumbent upon the Board to request a follow-up opinion on remand based upon accurate information. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be afforded a VA cardiovascular examination, with an examiner who has reviewed the claims file (including relevant Virtual VA records). This examiner must provide diagnoses for all heart disorders confirmed by the record since August 2006 or otherwise shown upon examination. All tests and studies deemed necessary by the examiner to ascertain current heart/cardiovascular diagnoses should be performed. For each diagnosed disorder, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disorder was caused or aggravated by the Veteran's service-connected hepatitis C. Similarly, the examiner must consider the Veteran's VA treatment from 2000 and address whether it is at least as likely as not that additional disability resulted from showing of (1) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA providers; or (2) an event not reasonably foreseeable. Attention is particularly directed to the results of the Veteran's April 17, 2000 exercise stress test and other VA records from 2000. All opinions must be supported by a complete rationale in a typewritten report. 2. Then, the claims for service connection for a heart disorder, including cardiomyopathy and to include as secondary to the service-connected hepatitis C, and for additional disability under section 1151, must be readjudicated. If the determination of either claim remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. 2012). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs