Citation Nr: 1327479 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 05-04 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disorder, to include as secondary to service-connected Pellegrini-Stieda of the left knee and/or Osgood-Schlatter's of the right knee. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected generalized anxiety disorder and panic disorder with agoraphobia. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active military service from August 1971 to April 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which determined that new and material evidence had not been received in order to reopen the Veteran's claims for service connection for right nerve root compression of the lumbar spine and hypertension. The new and material issues were previously before the Board in November 2006. At such time, they were remanded in order to afford the Veteran his requested hearing before a Decision Review Officer (DRO). As such, the Veteran and his spouse testified at a March 2007 hearing before a DRO at the RO regarding his applications to reopen his claims of entitlement to service connection for nerve root compression of the lumbar spine and hypertension. They also testified in July 2012 before the undersigned Veterans Law Judge sitting at the RO regarding such issues on appeal. Transcripts of both hearings are associated with the claims file. In November 2012, the Board reopened the Veteran's claims and remanded them for further development, to include obtaining private and VA treatment records, as well as VA examinations. Upon review of the Veteran's claims file, to include the paperless electronic (Virtual VA) claims file, VA treatment records dated through August 2012 were uploaded to Virtual VA in January 2013, which were considered by the agency of original jurisdiction (AOJ) in the April 2013 supplemental statement of the case (SSOC). Notably, the Veteran did not respond to the RO's request for authorization for the private records. In May 2013, the Board remanded the claims again to the AOJ as the previous opinions obtained were inadequate for rating purposes. The issue of service connection for a back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, D.C. FINDING OF FACT The Veteran's hypertension is proximately due to his service-connected generalized anxiety disorder and panic disorder with agoraphobia. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2006), (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for hypertension herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Similarly, any potential deficiency in the conduct of the DRO and/or Board hearing has been rendered harmless with a grant of full benefits being sought in this case. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (holding that 38 C.F.R. § 3.103(c)(2) imposes on a VA hearing officer (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked). 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 may also 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). Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. When an issue is raised as to whether the disorder claimed by the Veteran pre-existed service, the governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This statutory provision is referred to as the "presumption of soundness." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board notes that the provisions of 38 C.F.R. § 3.310 were amended during the pendency of the Veteran's appeal, effective October 10, 2006; however, the new provisions state that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b) (2010). Although the stated intent of the change was merely to implement the requirements of Allen, supra, the Board finds that the new provisions amount to a substantive change to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the Veteran as it does not require the establishment of a baseline level of disability before an award of service connection may granted. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his currently diagnosed hypertension either first manifested in service or, alternatively, is caused or aggravated by his service-connected generalized anxiety disorder and panic disorder with agoraphobia. The facts of this case may be briefly summarized. The Veteran had active military service from August 1971 to April 1972. On his August 1971 enlistment examination, he reported a history of increased blood pressure two years previous for which he took medications for six months. He had a blood pressure reading of 124/66. The Veteran had a blood pressure reading of 130/100 when being treated for hyperventilation in December 1971. He also reported a history of tachycardia. On his May 1972 separation examination, the Veteran reported a history of high blood pressure in February 1970. He had a blood pressure reading of 132/76. On his initial VA Compensation and Pension (C&P) examination in June 1972, the Veteran reported a history of nervousness, fast heart beating and high blood pressure "sometime[s]." He had a blood pressure reading of 138/80. Post-service, the Veteran was first diagnosed with labile hypertension during a November 1972 VA hospitalization. He had a blood pressure reading of 140/100 lying down and 100/70 when standing. At that time, he was also treated for anxiety neurosis. Thereafter, the record reflects the Veteran's treatment for symptoms of anxiety, nervousness, tenseness, shakiness, sleep difficulty and hysterical conversion reaction. He is service-connected for generalized anxiety disorder and panic disorder with agoraphobia. Post-service treatment records also reflect elevated blood pressure readings and diagnoses of hypertension and essential hypertension. An April 2001 VA general medical examination diagnosed the Veteran with essential hypertension. During the March 2007 DRO hearing, the Veteran testified that he had high blood pressure from anxiety. In November 2012, the Board found that a VA examination was necessary in order to determine whether the Veteran's current hypertension was related to his military service, to include his report in the August 1971 report of medical history that he had an elevated blood pressure two years prior to service that required six months of medication, or was secondary to his service-connected anxiety. In April 2013, the examiner found that the Veteran's hypertension clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression. The Board notes, however, the examiner did not offer an opinion as to whether or not the Veteran's service-connected anxiety caused or aggravated the hypertension. As no opinion was provided regarding secondary service connection, the Board again remanded the Veteran's claim in May 2013 for an addendum opinion regarding such aspect of his claim. In June 2013, a VA examiner stated that the pathophysiology of essential hypertension is an area of research which was currently not well-understood. According to medical literature, several theories had been proposed. One theory posited that hypertension was due to an overactive Renin-angiotension system which led to vasoconstriction and retention of sodium and water, which increased blood volume and led to hypertension. Another theory posited that an overactive sympathetic nervous system led to an increased stress response. Another theory indicated that hypertension was highly heritable and polygenic (caused by more than one gene). In this case, the VA examiner opined that it is at least as likely as not that the Veteran's essential hypertension is related to an overactive sympathetic system leading to increased stress responses, which is a component of anxiety. Here, the Veteran is service-connected for generalized anxiety disorder and panic disorder with agoraphobia. While the April 2013 examiner found that the Veteran's hypertension clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression, the June 2013 VA examiner has opined that the Veteran's essential hypertension is proximately due to overactive sympathetic system leading to increased stress responses, which is a component of anxiety. In other words, the Veteran's hypertension is proximately due to his service-connected generalized anxiety disorder and panic disorder with agoraphobia. There is no credible, well-reasoned opinion to the contrary. Thus, the criteria for entitlement to service connection for hypertension under 38 C.F.R. § 3.310 have been met. The claim, therefore, is granted. ORDER Service connection for hypertension is granted. REMAND The Board regrets any further delay in adjudicating the back disorder claim, but finds that the VA opinions obtained as a result of Board remand directives are inadequate for rating purposes. 38 C.F.R. § 4.2. As noted in the prior remands, the Veteran's service treatment records (STRs) include a December 1971 report of back pain. A March 1972 report of injury revealed a diagnosis of muscle spasms after a motor vehicle accident. Furthermore, post-service treatment records reflect complaints of low back pain, treatment for low back pain syndrome, and a diagnosis of myofascial lumbar syndrome. Additionally, the Veteran testified that he had experienced back pain since service. The Board further notes that, at his July 2012 hearing, he indicated that his bilateral knee disabilities caused him to alter his gait, thus causing or aggravating his back disorder. As such, the Board attempted to obtain an etiological opinion regarding the Veteran's back disorder by way of remand in November 2012 and May 2013. Following the November 2012 remand, in April 2013, the Veteran was provided a VA examination; however, the examiner did not provide an opinion as to whether the Veteran's current low back disorder was at least as likely as not related to the in-service complaints. Furthermore, the examiner incorrectly provided an opinion and rationale regarding whether or not the Veteran's bilateral knee disability, which is already service-connected, was as a result of his low back disorder. Therefore, the Board again remanded the issue in May 2013 in order to obtain an addendum opinion as to whether the Veteran's current low back disability is related to his military service, to include his in-service complaints and treatment (see December 1971 and March 1972 STRs), or secondary to his service-connected bilateral knee disabilities, is necessary. Thereafter, a VA examiner opined in June 2013 that the Veteran's current back disability, diagnosed as chronic degenerative changes, was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale for such opinion, the examiner stated that it was more likely than not that the Veteran's current lumbar spine condition was due to chronic degenerative changes associated with again and morbid obesity and indicated that, based on the available medical documentation, he was unable to comment further without resorting to mere speculation. However, the VA examiner did not explain how he arrived at this conclusion or discuss the significance, if any, of the Veteran's report of back injury and recurrent low back pain since service. The June 2013 VA examiner likewise opined that the back disability was less likely than not proximately due to or the result of the Veteran's service-connected condition. As rationale for such opinion, the examiner stated that a review of the orthopedic literature reveals no credible, peer-reviewed studies that support the contention that degenerative changes of one joint may induce degenerative changes in another joint either of the affected or contralateral extremity or spine, even in the setting of leg length discrepancy. He further indicated that it was more likely than not that the Veteran's current lumbar spine condition was due to chronic degenerative changes associated with again and morbid obesity and indicated that, based on the available medical documentation, he was unable to comment further without resorting to mere speculation. However, the examiner did not offer an opinion as to whether the Veteran's service-connected bilateral knee disabilities aggravated his back disorder. Therefore, the Board finds that another remand is necessary in order to obtain addendum opinions from a different VA examiner. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an appropriately qualified VA examiner different from the June 2013 VA examiner for an opinion regarding the nature and etiology of the Veteran's current back disability. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. The need for an additional examination of the Veteran is left to the discretion of the VA examiner selected to write the opinion. The examiner is specifically requested to opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disorder is related to his military service, to include his in-service reports of back pain and a motor vehicle accident (see December 1971 and March 1972 STRs). The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's service-connected bilateral knee disabilities caused or aggravated (i.e., permanently increased in severity beyond the natural progression) his back disorder. In rendering an opinion, the VA examiner should specifically consider and, to the extent necessary, discuss the following evidence: * a December 1971 clinic evaluation which noted the Veteran's report of back pain in conjunction with additional complaints of sore throat, chest pain and tachycardia; he was given assessments of tachycardia by history and multiple psychosomatic complaints; * a March 1972 STR reflecting that the Veteran was involved in an automobile accident with a loss of consciousness for 4 hours, noting his pain in the left parietal and left tibial areas, providing an impression of muscle spasm, and instructing the Veteran to return as needed (prn) for "neck pain;" * a May 1972 separation examination wherein the Veteran denied a history of recurrent back pain and physical examination indicated a normal clinical evaluation of the spine; * an October 1978 VA clinic record noting the Veteran's report of episodes of right knee give-way and locking; * an October 1978 private treatment record noting the Veteran's report of low back pain with x-ray findings interpreted as showing a normal lumbosacral spine; * a November 1983 statement from the Veteran reporting that he had been off of work due to a back injury; * a December 1983 private hospitalization record noting the Veteran's history of low back pain for "quite some time" with an additional back injury at work, and discharge diagnoses of low back pain syndrome with muscle spasm, degenerative disc disease, and L4 radiculopathy; * a June 1984 private medical statement noting the Veteran's treatment for a September 1983 work-related injury which caused incapacitating pain; * a February 2002 MRI examination of the right knee interpreted as showing suspect tears of the posterior horn and medical meniscus, degeneration of the lateral meniscus, suspected articular cartilage defects, fluid deep into the infrapatellar bursa, joint effusion, and multifocal osteophyte formation; * a March 2002 VA clinic record noting symptoms of right knee effusion and crepitus with limitation in flexion and extension; * the opinion of the VA examiner in June 2013; * the Veteran's report of injuring his back in basic training; and * the Veteran's theory that a gait abnormality due to his service-connected bilateral knee disability has caused and/or aggravated his low back disability. All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs