Citation Nr: 1329548 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-11 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to July 1989. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which also continued the Veteran's 20 percent disability evaluation for lumbosacral strain and granted service connection for sciatica of the left leg as part of this disability. The Veteran perfected an appeal with regard to these disabilities. The Veteran expressly limited his appeal with regard to his claim for an increased rating for lumbosacral strain. A claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded, unless the claimant expressly limits the appeal. AB v. Brown, 6 Vet. App. 35 (1993). In April 2011, the Veteran submitted a request for an increase in his disability rating for lumbosacral strain to 30 percent and "to cancel review of previous claim of increase of this condition." This April 2011 letter represents an express limitation of the Veteran's appeal with regard to his claim for an increased disability rating for his lumbosacral strain with sciatica of the left leg. In a May 2011 rating decision, the Veteran's disability rating for lumbosacral strain was increased to 40 percent and he was awarded a 20 percent disability rating for sciatica. This rating decision exceeds the 30 percent evaluation requested by the Veteran and, therefore, this disability is not before the Board. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge in April 2013. A transcript of the hearing is associated with the claims file. FINDING OF FACT The weight of the evidence is in favor of finding that the Veteran's current hypertension is aggravated by his service- connected lumbosacral strain. CONCLUSION OF LAW Hypertension was aggravated by the Veteran's service connected lumbosacral strain. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that his hypertension is secondary to his service connected low back disability (lumbosacral strain). The Veteran has not asserted a theory of presumptive or direct service connection. Since his claim is being granted based on the claimed secondary service connection theory of entitlement, no further discussion is required regarding these theories. In order to prevail on the issue of entitlement to secondary service connection, there must be (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. 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 private and VA treatment records show a current diagnosis of hypertension. See e.g., February 2013 VA treatment records and private treatment records dated January 2009 and November 2011. Additionally, he is currently service-connected for lumbosacral strain. Thus, the first two requirements under Wallin have been satisfied. The remaining question is whether the record contains medical nexus evidence establishing a connection between the service-connected lumbosacral strain and the current hypertension. To this end, a private treatment record dated December 11, 2008, noted that the Veteran's elevated blood pressure could be "secondary to back pain." In a November 2011 letter, a private cardiologist, Dr. Jenkins, provided a positive medical nexus opinion, stating, "I have seen [the Veteran] with respect to his hypertension. It is clear that his blood pressure is exacerbated by his pain level." In the accompanying record, Dr. Jenkins stated that the Veteran's "pain complex exacerbates his hypertension. Today, he stated that he is not in pain, and his blood pressure is relatively controlled. He does have spikes in his blood pressure when his pain level is elevated." By way of clarification, Dr. Jenkins also submitted an April 2012 letter, stating, "It is quite evident that inadequate pain control escalates blood pressure. This is a well-documented phenomenon. Further insight into the relationship of absence of pain control and hypertension are documented and can be reviewed in any medical literature." By contrast, the August 2011 VA opinion found that the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's service connected lumbosacral strain. The examiner noted that Dr. Jenkins' opinion was unfounded because the radiologic evidence related to the Veteran's lumbosacral strain did not show contact or compression of the nerve roots, foraminal stenosis, or nerve root impingement. As a result, the Veteran's complaints of back pain were entirely subjective. Aggravation of a nonservice-connected disability by a service-connected disability requires that there be an increase in severity of the nonservice-connected disability beyond the normal course of the condition. The Veteran's elevated blood pressure readings due to inadequately controlled back pain reflect such an increase in the severity of the disability. There is no requirement that the symptoms of the service connected disability be objectively measurable, which is the rationale for the negative August 2011 VA opinion. As a result, Dr. Jenkins' opinion is found to have more probative weight than that opinion. Thus, all reasonable doubt is resolved in the Veteran's favor and the weight of the evidence supports a finding that the third Wallin element has been met. Because each of the three Wallin elements has been met, service connection for hypertension is warranted. ORDER Service connection for hypertension is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs