Citation Nr: 1329824 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-38 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for coronary artery disease (CAD) claimed as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran had active service from January to May 1997 and from February 2003 to March 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. A June 2010 Decision Review Officer's decision granted service connection for degenerative disc disease of the lumbar spine, L4-S1, which was assigned a 20 percent rating effective April 2, 2008. A March 2012 rating decision granted service connection for sciatica of the lower extremities, each of which was assigned a 10 percent rating; granted an increased rating of 10 percent for service-connected bilateral hearing loss; granted a total disability rating based on individual unemployability due to service-connected disability (TDIU); and granted Dependents' Educational Assistance (DEA). Each of these grants was effective on August 2, 2011. The issue of entitlement to service connection for hypertension is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran does not have CAD that is caused or aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for CAD, due to or the result of service-connected PTSD, are not met. 38 U.S.C.A. §§ 5103A, 5107, 7104 (West 2002); 38 C.F.R. § 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in April 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection on a secondary basis. In compliance with the duty to notify, the Veteran was informed in the April 2008 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional relevant private evidence was subsequently added to the case after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A relevant VA evaluation, with nexus opinion, was obtained in August 2008. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as it involve review of the claims files, relevant examination of the Veteran, and an opinion on whether the Veteran has CAD due to service-connected disability. Accordingly, the Board finds that VA's duty to assist in obtaining a VA examination or opinion with respect to the service connection issue decided on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). 38 C.F.R. § 3.103(c)(2) (2012) requires that the Decision Review Officer (DRO) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at his April 2010 RO hearing by an accredited representative from The Texas Veterans Commission. The representative and the DRO asked questions to draw out the current state of the Veteran's disabilities. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection for CAD. Therefore, the Board finds that the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claim The Veteran seeks service connection for CAD secondary to service-connected PTSD. He has contended, including at his April 2010 hearing, that his heart attack and CAD are the result of anxiety caused by his service-connected PTSD. He has not claimed that his CAD is directly related to service. He was granted service connection for PTSD by rating decision in October 2008 and assigned a 30 percent rating effective April 2, 2008. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). 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). Allen v. Brown, 7 Vet. App. 439 (1995). 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). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment records do not reveal any complaints or findings indicative of CAD. According to an October 2007 invasive vascular procedure report from the Charlestown Area Medical Center, the Veteran had non-obstructive CAD. According to a November 2007 private medical report, the Veteran had a history of a myocardial infarction; arteriosclerotic heart disease was diagnosed. The Veteran was provided a VA heart evaluation in August 2008. It was noted that the Veteran had had a heart attack in October 2007, at which time he was smoking 1.5 packs of cigarettes a day. CAD was diagnosed. The examiner noted that PTSD is not the same as stress in CAD; each is a separate diagnosis and diagnostic code. After review of the claims files and physical examination of the Veteran, the examiner concluded that the Veteran's CAD was not the result of, secondary to, or aggravated by his service-connected PTSD. Rather, it was at least as likely as not that the Veteran's coronary thrombosis was secondary to a clot forming on an unstable coronary plaque associated with cigarette smoking. The examiner cited to medical texts to support this conclusion. The Veteran testified at his April 2010 RO hearing that he believed that his heart attack and CAD were causally related to the anxiety caused by his service-connected PTSD. It was noted on a VA general medical evaluation in October 2011 that the Veteran did not have a cardiovascular condition. VA treatment reports dated through February 2012 do not contain evidence of treatment for CAD. CAD was initially shown in 2007. There is no medical evidence on file showing a causal connection between the Veteran's CAD and his service-connected PTSD. In fact, the August 2008 VA evaluation and nexus opinion, which is the only nexus opinion on file and is based on a review of the claims files and medical examination of the Veteran, is against the claim. This opinion cites to several medical texts to support the conclusion that the Veteran's CAD is at least as likely as not secondary to a blood clot associated with cigarette smoking. Although the Veteran is competent to report his subjective symptoms, he is not competent to report that he has CAD due to service-connected PTSD. The diagnosis of CAD and the determination of the etiology of the disability are medical questions and require medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007). Because the preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for CAD on a secondary basis, the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for CAD is denied. REMAND The Veteran contended at his April 2010 RO hearing that he had high blood pressure beginning either in service or within a year of service discharge. Elevated blood pressure readings were noted in VA treatment records dated in August 2005, and hypertension was diagnosed in August 2006. Although a VA heart evaluation was conducted in August 2008, this opinion does not address whether the Veteran's hypertension is causally related to service. There is no other relevant medical nexus opinion on file. Consequently, the Board finds that additional development is warranted prior to final Board adjudication of the issue of entitlement to service connection for hypertension. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC must send the claims files to the VA examiner who evaluated the Veteran for heart disease in August 2008 and ask him to review the evidence of record and provide an additional opinion on whether the Veteran's .hypertension is at least as likely as not (50 percent probability or more) caused by or aggravated beyond normal progression by his military service. If the examiner who evaluated the Veteran in August 2008 is not available, the RO will obtain an opinion from another appropriate medical professional. If the reviewer determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. § 3.158, 3.655 (2012). However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims files, including a copy of this remand, must be made available to the examiner in conjunction with the examination. The rationale for all opinions expressed must be explained. The above opinion should include a discussion of the medical evidence of record, to include the blood pressure readings in service and the readings in the treatment reports after service discharge. The reviewer/examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to finds in favor of service incurrence or causation as to find against such matters. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The reviewer/examiner is further advised that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 2. Thereafter, the AMC/RO will consider all of the evidence of record and re-adjudicate the Veteran's claim for entitlement to service connection for hypertension. If the benefit sought on appeal remains denied, the Veteran will be provided a supplemental statement of the case ("SSOC"). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time will be allowed for response. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs