Citation Nr: 1335635 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-21 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a heart condition, to include as secondary to PTSD or hypertension. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1950 to September 1952. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2008, the Veteran testified at a hearing before a Decision Review Officer at the RO. A transcript of that hearing is associated with the claims file. In May 2011, the Board remanded this case for the Veteran to be scheduled for a Travel Board hearing at the RO. In June 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. At the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2013). In August 2011 and March 2013, the Board remanded the issues listed on the cover page for additional development. Also in August 2011, the Board remanded the issue of entitlement to service connection for posttraumatic stress disorder (PTSD). In an August 2012 rating decision, service connection was granted for PTSD. As a result, that issue has been resolved and is not before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). Additionally, the Board notes that in its prior August 2011 and March 2013 decisions, the issue of entitlement to service connection for alcoholism was referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. As it does not appear that any action has yet been taken on that matter, it is again referred to the AOJ for action. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has current diagnoses of hypertension, coronary artery disease, and atrial fibrillation. 2. The evidence of record does not establish that the Veteran experienced symptoms of chronic hypertension or a heart disorder during service, nor did hypertension and a heart disorder manifest within one year of separation from service. 3. The most probative evidence of record does not demonstrate that the Veteran's hypertension or heart disorder is causally or etiologically related to service. 4. The most probative evidence of record does not demonstrate that the Veteran's hypertension is causally or etiologically related to his service-connected PTSD, nor was it aggravated by the service-connected PTSD. 5. The most probative evidence of record does not demonstrate that the Veteran's heart disorder, to include coronary artery disease or atrial fibrillation, is causally or etiologically related to his service-connected PTSD, nor was it aggravated by the service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, to include as secondary to service-connected PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for service connection for a heart condition, diagnosed as coronary artery disease and atrial fibrillation, to include as secondary to service-connected PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013), 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a June 2006 letter issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claims for service connection as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In a subsequent letter issued around May 2013, the Veteran was notified of the elements of establishing service connection on a secondary basis. The Veteran's acknowledgment of receipt of that letter was received by VA in June 2013. This case was last adjudicated in July 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records. In this regard, the RO obtained available service treatment records, relevant post service treatment records and VA examination and opinion reports. Also of record and considered in connection with the claim are various written statements provided by the Veteran as well as transcripts of the Veteran's hearing testimony provided in October 2008 and May 2011. The Veteran has not identified any other available evidence relevant to these claims. To the extent that any treatment records from identified providers remain outstanding, the Board notes that the Veteran did not respond to a September 2011 letter from VA requesting that he identify and complete authorizations for the release of those records. In June 2013, he responded to another VA request for information relating to private providers that he did not have anything else to submit. See Wood v. Derwinski, 1 Vet. App 190 (1991) ("[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Board notes that it previously remanded the matter on appeal in August 2011 and March 2013 for development, to include providing the Veteran notice of how to establish secondary service connection, association of outstanding private treatment records, and an additional VA opinion. In response, the RO sent a letter around May 2013 providing notice of secondary service connection and requesting that the Veteran identify and complete authorizations for the release of records from providers who have treated him for hypertension and any heart disorder. However, as noted, the Veteran did not respond to the request. In May 2013, the requested opinion was obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a decision review officer (DRO) and a VLJ in which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the hearing officers identified the issues on appeal. The Veteran's representative asked specific questions directed at identifying whether the Veteran had symptoms meeting the criteria for service connection. Moreover, the Veteran volunteered his treatment history and symptoms since service. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claim for service connection. Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO or VLJ hearing. The hearings focused on the elements necessary to substantiate the claims and the Veteran testified as to those elements. As such, the Board finds that there is no prejudice to the Veteran in deciding this case. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Thus, consideration of this matter on the merits at this time is appropriate. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims herein decided and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2013). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, service connection may be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002). The Veteran contends that he currently suffers from hypertension and a heart disorder that were caused by his recently service-connected PTSD. Specifically, he asserts that his PTSD causes stress which, in turn, has caused his hypertension and a heart condition manifested by chest pains. The Veteran has reported that his PTSD has existed since service, his hypertension began around 1971, and his chest pains began in 1986. The Veteran has alternatively reported that, in connection with mental health treatment in 1974, he was found to have hypertension and coronary artery disease. The Veteran's separation examination is negative for complaints or clinical findings of hypertension or a heart disorder. Clinical evaluation of the heart at that time was normal, and the Veteran's blood pressure was recorded as 118/80. Post-service private records show treatment for hypertension as early as February 1989, and treatment coronary artery disease as early as July 2000. Of note, in August 2000, the Veteran reported that he was stressed and his blood pressure had "gone crazy." He reported that he had been treated for hypertension 15 years prior with a beta blocker, but that prior to a subdural hematoma the previous March, the Veteran had not been seeing a regular physician and was unaware of his blood pressure. Significantly, at that time it was also noted that the Veteran had not had the blood pressure cuff used at home checked for accuracy, nor did he bring his blood pressure record. His blood pressure was noted to be stable. Just days later, it was noted that the Veteran had not been taking his blood pressure medication as directed. In March 2001, it was noted that the Veteran experienced angina after learning that he was being evicted. The same month, however, he also denied angina and was reportedly feeling quite well aside from his mental health complaints, while still being noted to be under a significant amount of stress. A blood pressure reading in March 2001 was 146/79, at which time the Veteran was noted to look well and be in no acute distress, though his social situation was apparently in question. A second reading was 160/88. Then, in April 2001, a physician noted that the Veteran's anxiety may be starting to affect his blood pressure and may cause him to have further angina. Treatment records thereafter continue to show treatment for hypertension and heart problems. Significantly, however, neither the April 2001 physician nor any other physician subsequently associates the Veteran's hypertension or any heart disorder to PTSD. Following the grant of service connection for PTSD in August 2012, the Veteran was afforded a VA examination in October 2012 to determine whether his hypertension or heart condition was caused or aggravated by PTSD. Following a review of the claims file and examination of the Veteran, the examiner opined that the Veteran's hypertension and coronary artery disease (CAD) are less likely than not directly related to service. In support of the opinion offered, the examiner stated that the Veteran had classic risk factors for CAD, including hypertension, age, elevated lipids, smoking history, and alcohol abuse. Moreover, the examiner noted that PTSD is not listed as a cause of hypertension by the National Heart, Lung, and Blood Institute, noted to be the nation's authority on hypertension. While the examiner opined against direct service connection and provided a rationale supporting that the Veteran's PTSD did not cause hypertension, an opinion was not offered as to whether the Veteran's PTSD caused his heart condition, or whether the Veteran's PTSD permanently worsened either his hypertension or his heart condition. Therefore, an addendum opinion was obtained in May 2013. Following an additional review of the claims file, including the October 2012 examination report and electronic medical records, the VA examiner opined that the Veteran's hypertension is less likely than not permanently worsened by PTSD. The examiner found that there was no evidence in the claims file to support that conclusion, and noted that in September 2000 a cardiologist stated the Veteran's hypertension was stable. The examiner further concluded that the Veteran's heart condition was neither caused nor aggravated by PTSD. The examiner found that the Veteran had an abundance of risk factors for CAD, as noted in the prior VA examination report. The examiner also noted that in September 2000, a cardiologist stated that the Veteran's stent was patent, and that the Veteran claimed his heart disease was diagnosed in 1974. The examiner found no evidence in the claims file to support that the Veteran's heart condition was permanently worsened beyond its natural progression by PTSD. The Board finds the October 2012 opinion and the May 2013 addendum to be the most probative medical opinion evidence of record. Those opinions were based on a review of the Veteran's claims file and medical record, took into account his medical history, and were supported by rationale with reference to medical literature. Moreover, the opinions were based on the examiner's medical expertise and are largely consistent with other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this regard, the treatment records show that the Veteran's heart disorder was generally stable during the time since July 2000 when the Veteran was seen for coronary artery disease and chest pains/angina. This is true even during periods of stress, such as in March 2001 at which time the Veteran was simultaneously noted to be under a significant amount of stress and to have stable coronary artery disease. The Veteran's CAD or angina was also noted to be stable in April 2001, November 2002, January 2004, and June 2006. The record also shows precipitating factors other than stress associated with heart symptoms. For instance, the evidence shows that in January 2004, the Veteran reported episodes of angina that occurred when he was running around with his dogs, but not at rest, and in November 2005, he reported some angina at bedtime; those records do not mention PTSD or stress. The Veteran was also noted on occasion to have controlled hypertension during periods of stress. For example, in April 2001, it was noted that the Veteran's hypertension was stable, though he continued to have difficulty with his landlord that was causing some stress. Conversely, the Veteran was also noted to have elevated or uncontrolled hypertension or angina during periods in which he was not stressed or depressed. For example, in August 2000, the Veteran reported that he was feeling well but was assessed with uncontrolled hypertension following blood pressure readings of 195/110, 176/92, 178/98, 182/92. In March 2002, the Veteran was in good spirits and had blood pressure readings of 163/82 and 150/78. Though he was noted to be doing "fantastically," his blood pressure medications were increased. In June 2002, the Veteran denied depressive symptoms or a need for mental health treatment, but was noted to have hypertension under poor control. The Board also observes that private records dated in July 2000 and September 2006 suggest the Veteran's elevated blood pressure may be related to other factors to include nonservice-connected thyroid problems. Moreover, private treatment records show a history of noncompliance on the part of the Veteran as a significant factor to his uncontrolled hypertension. In this regard, in a March 2005 private treatment record, the same physician who previously suggested that the Veteran's stress might worsen his hypertension and angina stated that the Veteran's very poorly controlled hypertension "subsequently proved to be secondary to noncompliance." Indeed, the Veteran was frequently noted to not be taking the correct dose of medication at the time he was assessed to have uncontrolled hypertension. In May 2002, it was noted that the Veteran had problems with non-compliance in the past. In July 2003, depression was stable, but the Veteran was reminded of the importance of complying with medication. In July 2004, it was noted that the Veteran had always been noncompliant and finally, as stated, in March 2005, his "very poorly controlled blood pressure...proved to be secondary to noncompliance." The Veteran has not alleged, nor does the record otherwise show that his noncompliance causing uncontrolled hypertension is a result of his PTSD. On the contrary, in March 2001, in conjunction with a suspicion that blood pressure was not under good control, it was noted that the Veteran had difficulty with medication due to cost problems. In July 2004, the Veteran reported that he was too busy "in the garden" to take his medication, which he took occasionally. Indeed, while the Veteran has been treated for depression during the period on appeal, he has not received treatment for PTSD, and he has been frequently noted to be asymptomatic or with resolved depression. To the extent that memory problems can be associated with PTSD, the record here shows that the Veteran has not reported forgetting to take his medication. Furthermore, while the record does show complaints of memory problems, they were related to a nonservice-connected subdural hematoma/cerebral bleed in private records dated in September 2000 and November 2000. The Board is cognizant that there is some evidence in favor of the Veteran's claim. Specifically, an opinion was offered in April 2001 that the Veteran's stress and anxiety may worsen his hypertension or angina. However, that opinion was speculative and there is also no indication that it was based on a review of the Veteran's claims file and pertinent psychiatric history. Therefore, it is of limited probative value. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding that a doctor's statement that a veteran's brain tumor "may well be" connected to Agent Orange exposure was speculative); Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Moreover, the Board finds it significant that the same physician thereafter did not indicate such an association, but instead, definitively stated that the Veteran had uncontrolled hypertension due to noncompliance. The Board is also cognizant that the Veteran has submitted photocopied pages from a book that support an association between stress and cardiovascular problems. However, while such evidence supports that the Veteran's PTSD could affect his hypertension and heart disorder, it does not indicate that it has in this instance. Even so, the Board finds that the October 2012 and May 2013 opinions are more probative, as they are specific to this Veteran, were based on a review of his medical records and history, and are conclusive. Moreover, these opinions are consistent with the other evidence of record. Additionally, while the Veteran is competent to describe his symptoms, the Veteran has not shown that he has specialized training sufficient to render such an opinion concerning the diagnosis or etiology of hypertension or any heart disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, medical testing and expertise is required to determine whether the Veteran suffers from hypertension or heart disease, or whether any such disorder is caused or aggravated by PTSD. Thus, his opinion on such matters is not competent medical evidence. In any event, the Board concludes that the most probative medical evidence, which fails to provide a link between the Veteran's hypertension or heart disorder and service or service-connected PTSD, is of greater probative value than the lay contentions of the Veteran. In summary, the most probative evidence of record indicates that the Veteran's hypertension and heart disorder are not related service, were not caused by service-connected PTSD, and are not aggravated by service-connected PTSD. Moreover, neither condition was shown within one year following his discharge from service. Thus, the Board finds that the preponderance of the evidence is against the claims for service connection for hypertension and a heart disorder, and the claims must be denied. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for hypertension is denied. Service connection for a heart disorder is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs