Citation Nr: 1330220 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 08-00 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for hypertension, to include as secondary to any service-connected disability or service-connected disabilities. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1970, including service of slightly more than one year in Vietnam. The Veteran was awarded a Combat Infantryman Badge and a Purple Heart, among other awards and decorations. This matter initially came before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a May 2010 decision, the Board reopened the Veteran's claim for service connection for hypertension and Remanded the claim for development on the merits. The Veteran requested a Travel Board hearing. The requested hearing was conducted in February 2010. The Veterans Law Judge who conducted that hearing is no longer employed at the Board. The Veteran was notified, in May 2013, of his right to a new hearing. 38 C.F.R. § 20.707 (2013). The Veteran was afforded 30 days to respond if he wished to schedule another hearing. The Veteran did not respond. Appellate review may proceed. FINDING OF FACT The VA medical evidence is in equipoise to warrant a finding that the Veteran's hypertension is secondary to or aggravated by a service-connected disability. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hypertension are met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants the claim for service connection for hypertension. In view of the Board's decision to grant the Veteran's claim, a discussion of VA's duties to notify and assist in regards to that claim is unnecessary. Applicable Law Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Under section 3.310(a) of VA regulations, service connection may also 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). Where a service-connected disability aggravates a non-service-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board notes that provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the Veteran submitted his claim prior to that revision, and the provision in effect when the Veteran submitted his claim is applicable to this case; the revision is not more favorable to the Veteran, as the revision requires that a pre-aggravation baseline level of disability be established before service connection based on aggravation is granted, and such was not done in this case. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Facts and Analysis The Veteran initially claimed entitlement to service connection for hypertension as due to a service-connected psychiatric disorder. At that time, posttraumatic stress disorder was the only disability for which service connection was in effect. The Veteran's PTSD is currently evaluated as totally disabling. During the pendency of this matter, the Veteran sought service connection for residuals of a head injury (traumatic brain injury), and other disorders, while the matter of service connection for hypertension remained on appeal. The Veteran has also been granted service connection for residuals of traumatic brain injury, currently evaluated as 70 percent disabling, coronary artery disease, evaluated as 30 percent disabling, status post fracture, left eye socket, evaluated as 10 percent disabling, and scar residuals of shell fragment wounds, evaluated as noncompensable. A total disability evaluation has been in effect since 1999. The Veteran was awarded special monthly compensation in 2008. The examiner who conducted an October 2010 VA examination noted the Veteran's increased weight, his history of traumatic brain injury, reduced stamina, and reduced activity levels, among other medical issues. The February 2013 supplemental statement of the case (SSOC) states that the examiner opined that reduced activity due to service-connected disabilities and medications used to treat those disabilities could have led to a weight increase. The examiner is said to have opined that, on that basis, the Veteran's hypertension could be considered adversely affected by his service-connected traumatic brain injury and service-connected posttraumatic stress disorder. The Board notes that it is unable to locate that portion of the October 2010 VA examination report in which the examiner is said to have expressed this opinion. Nevertheless, since the opinion is recited in the SSOC, the Board must assume that VA has such a report. The opinion expressed in this report is favorable to the Veteran's claim. The examiner who conducted VA examination in December 2012 stated that hypertension is idiopathic in 95 percent of affected individuals, that is, no etiology can be identified. The examiner stated that there was no direct pathophysiologic relationship between the Veteran's hypertension and PTSD. In February 2013, the examiner apparently provided a verbal statement that there was no pathophysiologic relationship between hypertension and any of the Veteran's service-connected disabilities. The written report of the December 2012 VA examination is unfavorable to the Veteran's claim, as is the February 2013 verbal addendum. The Veteran was granted service connection for coronary artery disease after the examiner provided the December 2012 written opinion and verbal February 2013 update. There are essentially two medical opinions of record. Both are VA provider opinions. One provider's opinion is favorable, and the other is unfavorable. One opinion considers the medications used to treat the service-connected disabilities as well as the disabilities for which service connection has been granted. The unfavorable opinion includes both the written opinion and the addendum. Neither opinion addresses consideration of the most recent grant of service connection, since that decision was made after the opinions were rendered. Each examiner provided a rationale for their opinion. The Board finds that the evidence is essentially in equipoise. One well-reasoned VA opinion is favorable to the claim. One well-reasoned VA opinion is unfavorable to the claim. When the evidence is in equipoise, reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). The claim is granted. (CONT. ON NEXT PAGE) ORDER The appeal for service connection for hypertension, claimed as secondary to or aggravated by service-connected disabilities, is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs