Citation Nr: 1334195 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-48 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for left ventricular hypertrophy with systolic and diastolic dysfunction, secondary to service connected hypertension. 2. Entitlement to service connection for panic disorder, secondary to service connected heart disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to June 2003. These matters initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida on behalf of the RO in Montgomery, Alabama, which otherwise has jurisdiction of the claims folder. In that decision, the RO denied entitlement to service connection for heart failure with pacemaker implant, anxiety mixed with depression and hypertension. In August 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In October 2012, the Board remanded the claims for additional development. The RO subsequently granted service connection for hypertension and that issue is therefore not before the Board. The remaining claims have been recharacterized for the reasons indicated below. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether left ventricular hypertrophy with systolic and diastolic dysfunction is caused by hypertension. 2. Panic disorder is more likely than not caused by heart disease. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, left ventricular hypertrophy with systolic and diastolic dysfunction is proximately due to or the result of service connected hypertension. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). 2. With resolution of reasonable doubt in the appellant's favor, a panic disorder is proximately due to or the result of now service connected heart disease. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is, however, granting the only claims on appeal herein, further discussion of the VCAA is unnecessary. Wensch v. Principi, 15 Vet. App 362, 367-368 (2001). Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran claims that his current heart disease is caused by his service connected hypertension and that his current psychiatric disability is caused by his heart disease. The Board agrees with both contentions. As to the heart disease, the Board in its October 2012 remand noted diagnoses of multiple heart diseases and instructed that the Veteran be afforded a VA examination as to the relationship between hypertension and heart disease. The physician who performed the December 2012 VA heart examination, after reviewing the claims file and examining the Veteran, noted an episode of congestive heart failure in 2008 at the time of childbirth that was most likely due to peripartum cardiomyopathy. He also indicated, however, that the current echocardiogram showed evidence of left ventricular hypertrophy with both systolic and diastolic dysfunction. He therefore concluded that the etiology for the Veteran's current heart disability "is most likely due to the combination of effect of hypertension and residuals of peripartum cardiomyopathy." Moreover, he found that there were no clinical indicators to determine the specific contribution of each of these two disorders on her current cardiac condition. As the VA physician explained the reasons for his conclusion, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Appeals Management Center requested an addendum, and one was provided by a nurse practitioner (NP). The NP found the peripartum cardiomyopathy not likely related to hypertension (as had been implied by the physician) but could not determine the degree to which hypertension contributed to the current heart disorder as opposed to the cardiomyopathy. This was similar to the physician's finding that the congestive heart failure was caused by the pregnancy related and therefore non-service connected cardiomyopathy, but that hypertension was also contributing to the Veteran's current heart disorder. When it is not possible to separate the effects of the service connected and non-service connected disabilities, the benefit of the doubt doctrine requires that such signs and symptoms be attributed to the service-connected disability or disabilities. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52698 (Oct. 8, 1996)). Here, the physician and nurse practitioner each found that hypertension was one of the causes of the Veteran's current heart disorder but could not separate the effects of the service connected hypertension from the non-service connected cardiomyopathy. Resolving the reasonable doubt created by this relative equipoise in the evidence, the Board finds that the Veteran has current heart disability that is proximately due to or the result of service connected hypertension. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection is therefore warranted on a secondary basis. The only remaining question in this regard is the disability for which service connection is to be granted. The Board has found that left ventricular hypertrophy with systolic and systolic dysfunction is secondary to hypertension. As to whether this disorder constitutes a disability under VA law, the Board finds that the reasoning of a Court memorandum decision is relevant to this question. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). In Vincent v. Shinseki, No. 11-2348, 2013 WL 93359 (Vet. App. Jan. 9. 2013), the Court wrote: The Court also notes that the context of the Board's decision indicates that it may be applying a standard for the term "disability" that is too rigid. A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). The record indicates that the appellant has experienced a slight tachycardia, coronary spasm, atrioventricular block, and left ventricle hypertrophy. . . . On remand, the Board should determine whether these and any other diagnoses it might identify in the record are evidence that the appellant has suffered a heart "disability" as defined by the authority cited above. Based on the finding of the VA physician that the Veteran's left ventricular hypertrophy is a defect that causes impairment, i.e., diastolic and systolic dysfunction, the Board finds that it is a disability for which service connection may be granted and has recharacterized the issue accordingly. As to the Veteran's psychiatric disorder, the psychologist who performed the December 2012 VA examination found that, based on his examination, review of the claims file, and the Veteran's symptoms descriptions, history, and timeline, he suffers from panic disorder that is most likely caused by or a result of heart disease. As the psychologist explained the reasons for his conclusion, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Moreover, there is no contrary medical opinion in the evidence of record. As panic disorder is thus proximately due to or the result of the Veteran's now service connected heart disease, entitlement to service connection for this disability is warranted on a secondary basis. ORDER Entitlement to service connection for left ventricular hypertrophy with systolic and diastolic dysfunction, secondary to service connected hypertension, is granted. Entitlement to service connection for panic disorder, secondary to service connected heart disease, is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs