Citation Nr: 1321994 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-26 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hypertension, including as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This appeal to the Board of Veterans' Appeals (Board/BVA) is from March and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, in support of his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. The claim requires further development before being decided on appeal, so the Board is remanding it to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required to ensure there is a complete record upon which to decide this claim at issue in this appeal. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). There are different ways of showing entitlement to service connection - direct, presumptive and secondary. When deciding a claim for service connection, the Board must consider all potential bases of entitlement - so all three when expressly raised or otherwise suggested by the record. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a notice of disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). Direct service connection is granted if it is shown the Veteran suffers from disability directly resulting from an injury sustained or a disease contracted in the line of duty during his active military service or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Direct service connection requires competent and credible evidence showing: (1) the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the presently claimed disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b) (2012). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is one of the conditions identified in § 3.309(a) as chronic, per se, thus covered by this continuity of symptomatology pleading and proof alternative. Hypertension additionally may be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection maybe established, as well, on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) and (b) (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran contends that he began having problems with persistently elevated blood pressure, i.e., hypertension, after sustaining a gunshot wound (GSW) to his left thigh during his military service. Indeed, although he readily concedes that hypertension was never actually diagnosed during his service, including when examined for separation, he says that it nonetheless was first diagnosed in 1970 or thereabouts, so in close proximity to the one-year presumptive period following his discharge from service. He explains that it was detected during an evaluation he had for the GSW he had sustained to his left thigh while in service. The August 1967 report of medical history when entering service shows he mentioned having high blood pressure. The examiner observed the Veteran had elevated blood pressure one year prior to entering service but was not on medication and was okay at the time of that enlistment examination. The August 1967 report of medical examination noted his blood pressure was 128/80, so within normal limits, and that his vascular system also was within normal limits. The subsequent May 1969 report of medical history and report of medical examination for separation from service were entirely unremarkable for any complaints or notations of any vascular disorder, including hypertension. His blood pressure during that exit examination was 118/78, so again within normal limits. When eventually separating from service in July 1969, he contemporaneously filed an application for VA compensation or pension benefits (VA Form 21-526e) - listing the GSW he had sustained to his left thigh during his service as the basis for his application. During the VA compensation and pension examination he initially had after service, in November 1970, he gave a history of having had elevated blood pressure even prior to his GSW in service. His blood pressure at the time of the examination was 166/100, 150/110, and 166/100. So when in December 1970 certifying the results of that VA examination, the diagnosis was hypertension, essential, moderate. A deferred rating decision dated later in December 1970 indicates he resultantly was to be asked to furnish dates and places in service where he was examined or treated for hypertension. And he was provided a letter in January 1971 requesting this information. The letter was sent after available records were reviewed and no treatment for hypertension was noted. However, because he apparently did not respond within the next year, the RO apparently considered any construed claim for hypertension as abandoned. See 38 C.F.R. § 3.158 (2012). The next evidence in his claims file dates from March 2008 and concerns his current claim, which now is additionally premised on the notion that his service-connected PTSD is aggravating his hypertension, even if it did not cause it. He also cites his exposure to Agent Orange in service as a potential source or cause of his hypertension, therefore is now additionally alleging entitlement to service connection on a secondary basis, rather than solely as directly or even presumptively incurred during his military service. When testifying during his March 2011 videoconference hearing before the Board, he reiterated that within about a year of his separation from service, while being evaluated and treated for the GSW to his left thigh, he was informed that he had hypertension. He said medication was prescribed for treatment of it and that he has been taking medication ever since. The initial diagnosis of hypertension during the initial VA compensation examination in November 1970 was about 16 months after the Veteran's service had concluded, rather than within the required 1 year (i.e., 12 months) to warrant presuming it was incurred during his service - if also assuming that it manifested to the required minimum degree of at least 10-percent disabling. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). According to 38 C.F.R. § 4.104, Diagnostic Code 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension), the minimum compensable rating of 10 percent is warranted when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, or when systolic pressure is predominantly 160 or more. But irrespective of whether it may be presumed that his hypertension originated during his service, consideration must be given in any event to whether his hypertension is otherwise related or attributable to his service - especially given the close proximity of the November 1970 diagnosis to his separation from service just a little more than a year earlier, in July 1969. There also remains the question of whether his service-connected PTSD caused or is aggravating his hypertension to warrant the granting of service connection on this alternative secondary basis. He is currently receiving treatment at Tennessee Oncology. His treating physician, Dr. M.E.K., stated in a May 2009 letter that he felt that the Veteran's stress disorder was related to his poor blood pressure control in addition to his stress and perhaps resultant depressive symptoms due to his pain. This private examiner's opinion is unclear. That is, it is difficult to determine whether the examiner means to state that the Veteran's hypertension is the result of his PTSD or, instead, that his PTSD is the result of his hypertension. Other post-service, private treatment records dating from 1984 to the present indicate the Veteran has had some problems with controlling his blood pressure over the years. Most recently it was noted that his blood pressure was under control with medication. The Court (CAVC) has indicated that the factor of relationship of current disability to service establishes a low threshold and requires only that the evidence "indicates" there "may" be a nexus or link between the current disability or symptoms and a Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence suggesting a nexus but that is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate the current disability may be associated with service). The Board therefore finds this case presents a medical question that cannot be answered by the Board and that is not addressed by the existing evidence of record. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Specifically, this question concerns the relationship, if any, between the Veteran's currently diagnosed hypertension and his active military service or, alternatively, the relationship between his hypertension and his service-connected PTSD. Regarding the latter, two opinions are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). These determinative issues of causation and aggravation, then, need to be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The existing evidence of record does not provide the foundational basis necessary to adjudicate this claim of entitlement to service connection for hypertension. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board resultantly is left to obtain this necessary medical nexus opinion. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Schedule an appropriate VA compensation examination to assist in determining the nature and etiology of the Veteran's hypertension. All efforts made to schedule this examination should be documented and incorporated into the claims file. The relevant documents in the claims file must be made available to the examiner for review of the pertinent history of this claimed disability, and the examination report should reflect this review has been accomplished. All appropriate testing should be performed and all pertinent diagnoses rendered. The examiner should also request a history from the Veteran and consider it in making his/her determination on appropriate diagnoses and etiologies. Based upon a review of the record and clinical findings, it is specifically requested that the VA examiner respond to the following questions: a) Did the Veteran clearly and unmistakably have hypertension when entering service in July 1967? b) If so, did his military service also clearly and unmistakably not aggravate any pre-existing hypertension - meaning not permanently or chronically worsen it over and beyond its natural progression? c) If the response to either a) or b) is not affirmative, what is the likelihood (very likely, as likely as not, or unlikely) his hypertension instead incepted during his service from July 1967 to July 1969, or within one year of his discharge, so meaning by July 1970, or is in any way otherwise related or attributable to his military service? *In making these determinations, the examiner must acknowledge the diagnosis of hypertension, essential, moderate, during the Veteran's initial VA compensation and pension examination after service, in November 1970, which was just some 16 months after the conclusion of his service, i.e., just beyond the one-year (12-month) presumptive period. e) What is the likelihood (very likely, as likely as not, or unlikely) the hypertension alternatively was caused or permanently aggravated by his service-connected PTSD. Two opinions are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. See Allen, 7 Vet. App. at 448; 38 C.F.R. § 3.310(b). If the VA compensation examiner concludes that an opinion cannot be offered without resorting to mere speculation, then he/she should indicate this but, more importantly, explain why an opinion would be speculative, such as by specifying whether there are several possible etiologies with none more prevalent than another, additional information or other procurable data is needed, or whatever the reason. In other words, merely saying he/she cannot comment will not suffice. 2. Then readjudicate this claim of entitlement to service connection for hypertension in light of this and all other additional evidence. When readjudicating this claim, consider all potential bases of entitlement - direct, presumptive and secondary. If this claim continues to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).