Citation Nr: 1335922 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 05-24 040 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to higher initial disability ratings for post-traumatic stress disorder (PTSD), which is evaluated as 30 percent disabling prior to January 4, 2004, and 50 percent disabling thereafter. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus and PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to September 1974, to include combat service in the Vietnam Conflict; and his decorations include the Combat Action Ribbon. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2003 decision of the RO that granted service connection for PTSD evaluated as 30 percent disabling effective May 6, 2002. The Veteran timely appealed for a higher initial rating. These matters also came to the Board on appeal from a November 2005 rating decision that, in pertinent part, found new and material evidence for reopening, but then denied the Veteran's claim for service connection for hypertension on the merits. The Veteran timely appealed. In May 2009, the RO increased the disability evaluation to 50 percent for PTSD, effective March 9, 2004. Because higher evaluations are available for PTSD, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Consistent with the Veteran's assertions and the record, the Board has recharacterized the appeal as encompassing the issue on the title page. In January 2010, the Veteran testified during a hearing before the undersigned in Washington, D.C. In April 2010, the Board also reopened the claim for service connection for hypertension; and remanded both claims on appeal for additional development. The Board is satisfied there was substantial compliance with its remand orders as to the claim for service connection for hypertension. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran already has been awarded a TDIU, effective from the date in April 2004 when schedular requirements for the award were first met. Hence, it is unnecessary to remand the matter for further action. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. The issue of entitlement to higher initial disability ratings for PTSD is addressed in the REMAND portion of the decision below, and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The evidence supports a finding that hypertension is due to or aggravated by a service-connected disability. CONCLUSION OF LAW Hypertension is secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Moreover, in Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that the Veterans Law Judge who chairs a Board hearing fulfill two duties to comply with 38 C.F.R. § 3.103(c)(2). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked, or was outstanding that might substantiate the claim. The case was thereafter remanded for additional development, including examinations. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); and no prejudice has been identified in the conduct of the Board hearing. II. Analysis Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to the showing of chronic disease, there must be a combination of sufficient manifestations to identify the disease entity and sufficient observation at the time, as distinguished from isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303 (2012). Service treatment records show that, at the time of the Veteran's enlistment examination in May 1968, his blood pressure reading was 120/68. At the time of his separation examination from active service in August 1974, the Veteran's blood pressure reading was 132/82. Private treatment records show an impression of hypertension with concentrated left ventricular hypertrophy in January 1999. In August 1999, the Veteran gave a history of having had hypertension prior to being diagnosed with coronary artery disease. In May 2001, the Veteran reported a history of mild blood pressure, which was fairly controlled with medication. VA treatment records show an assessment of uncontrolled hypertension in March 2000; and blood pressure readings of 120/84 in December 2001, and 140/80 in September 2003. During a January 2004 VA examination, the Veteran reported that he had been diagnosed with diabetes mellitus in September 1993, with symptoms prior to that date; and that he was started on medications. He also reported being diagnosed with hypertension approximately four or five years earlier, and was given blood pressure medications. Records show that the Veteran had a cerebrovascular accident with right-sided hemiparesis in March 2003, with some recovery. The Veteran reported a history of myocardial infarction in 1998 and a coronary artery bypass graft in 2000. He reported symptoms of stable angina, for which he took sublingual nitroglycerine. Examination in January 2004 revealed that the Veteran's blood pressure reading was 156/94 (standing), 175/97 (sitting), and 171/94 (supine). The diagnosis was hypertension, pre-existing the diagnosis of diabetes mellitus by several years. In September 2005, the Veteran's treating cardiologist, Dr. Glover, reported the Veteran's symptoms of PTSD; and indicated that PTSD can cause physical stress on the body, manifested by an increase in heart rate and blood pressure. He also opined that chronic stress on the body was a major factor in worsening hypertension. In January 2006, Dr. Glover opined that the Veteran's PTSD has been a major factor in the aggravation of the Veteran's existing heart disease, diabetes mellitus, and hypertension. In September 2007, the Veteran's treating psychologist noted that the Veteran had significant cardiac problems, which have been shown to be associated with exposure to Agent Orange or as a result of his diabetes mellitus. VA treatment records, dated in August 2009, show that the Veteran had been admitted to a PTSD inpatient program; and that his medications were inadvertently switched without correcting dosages and schedule, which resulted in inadequate blood pressure control and an increase in angina. Further workup and medication changes were applied. In January 2010, the Veteran testified that his severe PTSD had contributed to his other chronic disabilities. During a December 2010 VA examination, the Veteran reported being diagnosed with hypertension in 1998; and that he currently took medications. His cardiac history also was noted. Following examination, the diagnosis was hypertension. Complications included cerebrovascular accident and coronary artery disease, including myocardial infarction. The examiner opined that it is at least as likely as not (50/50 probability) that hypertension is related to active service. The report of a May 2012 VA examination reflects an opinion that the Veteran's hypertension was at least as likely as not (50 percent or greater probability) incurred in or caused by active service. In support of the opinion, the examiner noted evidence of hypertension in an August 1974 report of medical examination. The basis for this opinion was not clear. However, the examiner also opined that hypertension was at least as likely as not due to service-connected diabetes mellitus as hyperinsulenemia and insulin resistance causes hypertension in diabetics through sodium retention and a direct effect on blood vessels. Here, VA physicians rendered etiology opinions, based on the evidence of record. Likewise, Dr. Glover suggested that stress on the body caused by PTSD also aggravated the Veteran's hypertension. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 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). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(a), (b), as amended effective October 10, 2006. The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. Allen v. Brown, 7 Vet. App. 439. This had not been VA's practice, which suggests that the recent changes amount to a substantial change. See Allen, 7 Vet. App. at 447-449. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the Veteran. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the Board finds that the opinions by the May 2012 VA examiner and Dr. Glover are the most probative evidence for resolving the matter on appeal. The opinions are fully supported by the objective evidence of record and lay statements, and are factually accurate and contain sound reasoning. The Veteran's treating cardiologist has the medical knowledge to express competent opinions. Given the favorable opinions with respect to whether hypertension is due to or aggravated by a service-connected disability, the Board finds the overall evidence as to secondary service connection is at least in equipoise. See Hodges v. West, 13 Vet. App. 287, as amended (2000). Accordingly, service connection is warranted for hypertension. In reaching this decision, the Board has extended the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107. ORDER Service connection for hypertension is granted. REMAND Higher Initial Ratings for PTSD Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. In evaluating the Veteran's request for a higher initial disability rating, the Board has reviewed the medical evidence of record. VA records dated in May 2008 show that the Veteran received treatment regularly for PTSD on a weekly basis for approximately six months from a private psychologist, L. J. Coates, PhD. The RO or AMC should specifically seek the Veteran's authorization for release of all treatment records from this clinician. A VA hospital discharge summary in the claims file reflects that the Veteran was hospitalized for PTSD treatment from June 22, 2006, to August 11, 2006. Clinical records and inpatient notes pertaining to that treatment might be relevant to the Veteran's claim for higher disability ratings. Moreover, the May 2013 supplemental statement of the case lists electronic treatment records from the VAMC Dublin, Georgia, dated from January 2010 to May 2013, as evidence; and the reasons and bases portion specifically refers to the Veteran's evaluation for PTSD on February 5, 2013. It appears that these records have not been associated with the Veteran's claims file (physical or electronic), and they should be. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary contact information and authorization from the Veteran, please request all treatment records that pertain to PTSD from the Veteran's private psychologist, Dr. Coates, to include those from August 2006 to the present date; and associate them with the Veteran's claims folder (physical or electronic). The Veteran should also be asked to identify any other medical records that are not already of record and are relevant to his claim. Attempt to obtain any identified records provided that any necessary authorization forms have been provided to VA. 2. Obtain VA clinical and inpatient records pertaining to the Veteran's hospitalization for PTSD treatment from June 22, 2006, to August 11, 2006; and associate them with the Veteran's claims file (paper or electronic). 3. Obtain VA treatment records from the VAMC Dublin, Georgia, dated from January 2010 to May 2013-including the February 5, 2013 PTSD evaluation; and associate them with the Veteran's claims file (paper or electronic). Also obtain any relevant VA records dating from May 2013. If there are no such records, this should be documented for the record. 4. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. After ensuring that the requested actions are completed, and undertaking any other development action that is deemed warranted, the RO or AMC should re-adjudicate the claim on appeal. If the benefits sought are not fully granted, the RO or AMC must furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs