Citation Nr: 1328099 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 06-19 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), or as a result of an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from July 1990 to July 1993. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, inter alia, denied the Veteran's claims for service connection for hypertension and a respiratory disorder. During the pendency of this appeal, jurisdiction of the claims folder was transferred to the RO in Montgomery, Alabama. In October 2006, the Veteran testified at a hearing at the RO in Montgomery, Alabama, before a Decision Review Officer (DRO). A transcript of that hearing is contained within the claims file. The Board remanded this matter in August 2010 and February 2012 for additional development. In the January 2013 and May 2013 Board remands, the RO/Appeals Management Center (AMC) was specifically directed to ensure that the Veteran had a reasonable amount of time to respond to the scheduling notification of the VA examinations. Pursuant to the May 2013 remand instructions, the Veteran was scheduled for VA examinations in connection to his hypertension and respiratory disorder claims in June 2013. Copies of the VA examination report as well as the Veteran's updated VA treatment record have been obtained and either associated with his claims file or scanned into the Virtual VA claims processing system. The AMC subsequently readjudicated the claim in the July 2013 Supplemental Statement of the Case (SSOC). Thus, the AOJ has complied with all of the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Before the matter was transferred to the Board, by way of the July 2013 rating action, the RO granted service connection for the Veteran's chronic obstructive pulmonary disease, and evaluated it as 30 percent disabling, effective March 4, 2004. The Board finds that the grant of service connection for the respiratory disorder constitutes a full award of the benefit sought on appeal with respect to this issue. See Grantham v. Brown, 114 F. 3d 156, 1158 (Fed. Cir. 1997). The record on appeal contains no indication that the Veteran has appealed the downstream elements of effective date or initial rating for this disability; thus, this matter is not in appellate status. The Veteran is currently only appealing the March 2005 denial of service connection for hypertension. FINDINGS OF FACT Competent evidence of record demonstrates that the Veteran's current hypertension was aggravated beyond its natural progression by his service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran attributes his current hypertension to his PTSD symptoms; namely his impaired sleep. He has also asserted that it is related to an undiagnosed illness from his service in the Persian Gulf; however, since his claim is being granted based on a secondary service connection theory of entitlement, no further discussion is required regarding the undiagnosed illness theory. For secondary service connection to be granted, generally there must be (1) medical 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. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that the provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes 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 claimant because it does not require the establishment of a baseline before an award of service connection may be made. The evidence of record, including numerous treatment records issued by the Veteran's private treatment providers and dated from December 2001 to January 2008, as well as VA examination reports dated in December 2008, January 2009, and June 2013, reflects an ongoing diagnosis of hypertension. The Veteran is also service-connected for PTSD with sleep disturbance and associated fatigue. See February 2006 rating decision. Therefore, the first and second Wallin elements have clearly been satisfied. What remains to be established is whether the Veteran's hypertension was caused or aggravated by his service-connected PTSD. In a January 2008 treatment report, one of the Veteran's private treatment providers noted that the Veteran had diagnoses of PTSD and hypertension, and that "[c]ertainly the hypertension, headaches, and sleep disorder may be caused by the PTSD or maybe aggravated by the PTSD and certainly all that is reasonable and makes good sense." At the December 2008 VA examination, the VA examiner determined that the Veteran's hypertension was more likely related to his genetic component and "mostly has to do with his idiopathic hypertension." At the January 2009 VA examination, the VA examiner referenced a medical literature article as the basis for her opinion and concluded that the Veteran's hypertension was less likely as not caused by his PTSD, noting that PTSD was not a known cause of hypertension and over 90 percent of hypertension cases had no identified cause. However, neither examiner provided an opinion as to whether the Veteran's hypertension was aggravated or worsened beyond its natural progression as a result of his service-connected PTSD. Pursuant to the May 2013 remand, the Veteran was afforded another VA examination in June 2013, at which time, the VA examiner agreed that the Veteran's hypertension was not caused by his service-connected PTSD. According to the examiner, PTSD was not a condition which causes hypertension, and the Veteran was not on any type of medication (for his PTSD) that might cause drug-induced hypertension. However, when asked whether the Veteran's hypertension was at least as likely as not aggravated beyond its natural progression by his service-connected PTSD, the VA examiner responded yes. According to the examiner, the Veteran's hypertension was at least as likely as not worsened beyond its natural progression as a result of the Veteran's "significant and prolonged sleep disruption" due to his PTSD. The VA examiner explained that lack of sleep was a known cause of blood pressure elevation due to disruption of the normal circadian rhythm of hormones. Indeed, a review of the evidence of record reflects the Veteran's ongoing complaints of difficulty sleeping as a result of his PTSD. He reported to experience difficulty falling or staying asleep at the February 2008 VA examination. He also described ongoing nightmares at the December 2008 VA examination, and further reported to experience insomnia at a January 2009 VA treatment visit. As such, the record reflects that the Veteran's PTSD is, among other symptoms, manifested by his impaired sleep. In light of the June 2013 medical opinion which establishes a relationship between the Veteran's currently diagnosed hypertension and his service-connected PTSD, the Board finds that the third Wallin element required for service connection has also been satisfied. Based on the totality of the evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran hypertension was aggravated beyond the normal course of the condition as a result of his service-connected PTSD. Accordingly, because all three elements required to establish entitlement to service connection have been met, the Board finds that service connection for hypertension is warranted. Therefore, the Veteran's claim of entitlement to service connection for hypertension is granted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for hypertension is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs