Citation Nr: 1321361 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 08-39 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for hypertension to include as secondary to service-connected major depressive disorder and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1961 to January 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. It is noted that in a September 2012 rating decision, the RO denied service connection for vision impairment due to ionizing radiation. The Veteran subsequently filed a notice of disagreement with the decision in September 2012, and the RO issued a statement of the case on the matter in February 2013. To perfect his appeal to the Board, the Veteran must file a timely substantive appeal. 38 C.F.R. §§ 20.202, 20.302. As there is no documentation that a substantive appeal has been filed, the Board does not deem the issue of service connection for vision impairment to be in appellate status for its consideration. FINDINGS OF FACT 1. There is no competent medical evidence showing that the Veteran's hypertension was caused by or developed out of his service-connected major depressive disorder and PTSD. 2. There is competent medical evidence showing that the Veteran currently has hypertension that has been made permanently worse by his service-connected PTSD. CONCLUSIONS OF LAW 1. Hypertension is not proximately due or the result of the service-connected major depressive disorder and PTSD. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.310(a) (2012). 2. Hypertension is aggravated as a result of the service-connected PTSD. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. § 3.310(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the decision regarding the claim of service connection is ultimately favorable to the Veteran, no further action is required to comply with the VCAA. II. Legal Criteria Service connection may be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A claim for secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 71 Fed. Reg. 52744 -52747 (Sept. 7, 2006). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the Court's decision in Allen, which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). Under the revised 38 C.F.R. § 3.310(b), the regulation provides that: 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 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. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b) (2012)). Although it was expected that the intended effect of the amendment was to conform VA regulations to the Allen decision, the regulatory amendment effectively resulted in a change in the law. While the overall intention of the amendment to 38 C.F.R. § 3.310(b) was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In addressing the imposition of this new evidentiary requirement, the regulatory comments cite to 38 U.S.C. § 501, and not Allen, as the supporting authority. See 71 Fed. Reg. 52,744-45 (Sept. 7, 2006). In sum, 38 C.F.R. § 3.310(b) appears to place substantive evidentiary requirements on a veteran before aggravation may be conceded, and these requirements appear to have no basis in the Allen decision itself. In this case, as the Veteran's claim was filed in June 2007, which is after the effective date of the revised regulation (October 10, 2006), the revised version of the r egulation is for application. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also 38 C.F.R. § 3.102. III. Facts and Analysis In this case, the Veteran maintains that his hypertension has been related by doctors to his mental health disability. At his hearing, he could not recall if he was ever treated for high blood pressure during service but that he may have been treated for it 30 years ago at the VA. He described how his blood pressure would elevate during times when his psychiatric symptoms were spiking. The Veteran served on active duty from October 1961 to January 1964. Service treatment records do not show any complaints, clinical findings, or diagnosis of hypertension, or elevated blood pressure readings. At the time of an enlistment physical examination in September 1961, the Veteran's blood pressure was 114/66. At the time of a separation physical examination in January 1964, his blood pressure was 122/76. After discharge from service, there is no medical evidence of elevated blood pressure readings for many years. VA outpatient records show that the Veteran's blood pressure readings were 138/98 in December 1989, 163/91 in May 1992, and 157/89 in February 1993. VA outpatient records dated in June 1998 reflect a diagnosis of hypertension. On a VA discharge summary in June 2001, it was noted that the Veteran had a history of hypertension but had never been treated in the past. The diagnoses on that report included hypertension. Another June 2001 VA record (outpatient report) indicates that hypertension was in fair control on medication. VA outpatient records in 2005 indicate that the Veteran's hypertension was controlled on medication, yet on at least one occasion in 2006 his hypertension was noted to be poorly controlled on medications. VA outpatient records showing psychiatric treatment show that in the latter half of 2008, the Veteran's blood pressure was elevated and his medication was consequently increased. The Veteran's VA treating psychiatrist wrote a letter in January 2009, endorsing that the Veteran met the criteria for a "full diagnosis" of PTSD. At the time of a VA examination in January 2010, the Veteran was diagnosed with major depressive disorder and PTSD, related to a stressor event in service, and his disorders were described as severe. In a July 2010 rating decision, the RO granted service connection for major depressive disorder and PTSD, and assigned a 100 percent disability rating, effective from June 2007. The record contains several medical opinions related to the etiology of the Veteran's hypertension. On a VA outpatient report dated in March 2011, the Veteran's treating psychiatrist indicated that the Veteran asked about the physical impairments associated with PTSD. The psychiatrist discussed how it was "fairly likely" that it was more difficult to treat some of the Veteran's physical problems due to his PTSD as chronic anxiety and triggers of PTSD could contribute to one's physical problems including muscle tension, anxiety, and high blood pressure. He discussed with the Veteran studies that showed that veterans who have PTSD have approximately double the risk of death from causes of cardiovascular disorders. The psychiatrist remarked that the Veteran had a number of PTSD symptoms such as chronic anxiety and depressive symptoms and that he also had significant problems with hypertension and cardiovascular concerns. From reading reports on the Veteran and reviewing recent research and presentations (he attached medical extracts to his report), he opined that the Veteran's hypertension "very likely is exacerbated by and complicated by" his PTSD. He added that it was "more likely than not that [the Veteran's] hypertension and anxiety are inextricably related, making each of the other more difficult to treat." In October 2012, the Veteran underwent a VA hypertension examination to determine the likelihood that his hypertension was caused by or a result of his PTSD. The examining physician noted that the Veteran felt his PTSD aggravated his hypertension. It was noted that the Veteran was on continuous medication to treat hypertension. The examiner reviewed the claims files and concluded that the Veteran's hypertension was less likely than not incurred in or caused by his PTSD. However, the examiner further opined that it was "evident" the Veteran's hypertension was aggravated by his PTSD. He explained that stress from PTSD would likely cause his blood pressure to increase. He agreed with the March 2011 opinion of the Veteran's treating psychiatrist about the relationship between the Veteran's hypertension and PTSD. The claims files were subsequently returned to the examining physician for an addendum report in November 2012, to answer additional questions regarding the aggravation of the Veteran's hypertension by his PTSD. The examiner responded that a baseline level of severity of hypertension, based upon medical evidence available prior to aggravation or the earliest medical evidence following aggravation by PTSD, could not be established. The reason for this is because PTSD developed over a given period of time, with symptoms waxing and waning, and the impact of such symptoms on the Veteran's blood pressure varied along with the symptom changes. The examiner was not aware of a way to monitor or track blood pressure during these symptom changes, so as to produce documentation that blood pressure was increasing, other than the Veteran's own verbal attestation. About the same time that the VA examiner was providing an addendum opinion on the issue of aggravation, the Veteran's VA cardiologist provided an assessment in a VA outpatient report dated in November 2012 that the Veteran had hypertension and hypertensive heart disease that was "no doubt connected to an[d] exacerbated by" his PTSD. The physician stated that the two disorders were "clearly interrelated." In light of the opinions above, there is no medical evidence to show that the Veteran's hypertension was caused by or developed out of his service-connected major depressive disorder and PTSD. For one, the VA examiner specifically noted that such a direct etiologic relationship did not exist. Nevertheless, on the question of the Veteran's PTSD aggravating his hypertension, the opinions on that matter are uniformly favorable to the Veteran's claim and there are no opposing opinions of record. Three different physicians, including a psychiatrist and a cardiologist, have similarly concluded that the evidence clearly shows the Veteran's PTSD aggravates his hypertension. That is, the evidence shows hypertension has been made permanently worse by PTSD or, put another way, the increase in severity of hypertension is attributable to the PTSD. The Board notes that in the addendum report of November 2012, the VA examiner provided comment on attempting to quantify the increase in severity of hypertension attributable to PTSD, essentially stating that a baseline level of severity of the hypertension could not be established in the Veteran's circumstances where symptoms waxed and waned. He suggested the Veteran's own verbal attestation as the only way to track blood pressure increases during PTSD symptom changes, but it is noted that 38 C.F.R. § 3.310(b) requires medical evidence to show baseline level of severity. In other words, the examiner apparently knew of no practical and reliable methodology in a clinical setting in which to measure precisely how much PTSD aggravates the Veteran's hypertension. Although there is an admitted lack of medical evidence to quantify aggravation, there is more than ample medical evidence to substantiate that the Veteran's PTSD aggravates his hypertension. Notwithstanding the seeming impossibility of determining the exact baseline of severity of hypertension, for the reasons provided by the VA examiner, the Board does note that there is medical evidence from VA, as described previously, which shows that the Veteran has had periods where his blood pressure has increased and his hypertension has been poorly controlled such that additional medication was required. Moreover, of record is a computer-generated list from VA of the Veteran's history of blood pressure readings beginning in June 2001 to the present, reflecting that the Veteran's hypertension has largely been controlled on medication. Therefore, for rating purposes, establishing service connection for hypertension on an aggravation basis and assigning a disability rating to reflect the level of aggravation of hypertension would not be entirely without factual basis in the medical record. In view of the foregoing, there is satisfactory proof that the Veteran's hypertension is related to his period of service by way of his service-connected PTSD. A direct nexus to service is not shown as hypertension, or high blood pressure, was not clinically or otherwise shown until many years after discharge from service in 1964. 38 C.F.R. § 3.303. Nonetheless, as noted, all medical opinions of record that addressed whether there was a connection between the Veteran's hypertension and his service-connected major depressive disorder and PTSD were consistent in finding that a relationship existed on an aggravation basis. The opinions were offered by treating physicians and also a VA examiner, who undertook a comprehensive review of the record and provided rationale that took into consideration the significant facts of the case. The opinions are thus probative and entitled to great weight. Accordingly, the Board determines that there is competent evidence to support the claim that the Veteran's hypertension has been made permanently worse by the service-connected PTSD. Accordingly, as the claimed disability is proximately due to a service-connected disability on an aggravation basis, entitlement to service connection on a secondary basis under 38 C.F.R. § 3.310(b) is warranted. ORDER Service connection for hypertension to include as secondary to service-connected PTSD is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs