Citation Nr: 1336093	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  08-35 596	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in 
Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for hypertension. 

2.  Entitlement to service connection for acute coronary syndrome, to include as secondary to hypertension.

3.  Entitlement to a rating in excess of 20 percent for internal derangement of the right knee, post operative, with degenerative joint disease. 

4.  Entitlement to a total disability rating for compensation based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars 


ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

The Veteran served on active duty from July 1967 to June 1969.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. 

In September 2010, the Board remanded the claims of service connection for hypertension and heart disease, and the claim for an increased rating for right knee degenerative joint disease, for further development.  With regard to the issues of service connection for hypertension and heart disease, no further action to ensure compliance with the Board's remand directives is required; however, further evidentiary development is needed on the increased rating claim, including adjudication of a claim for TDIU.

The issues of entitlement to a rating higher than 20 percent for a right knee disability and entitlement to TDIU are addressed in the remand portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  The Veteran's hypertension had its onset in service.

2.  The evidence shows that the Veteran's coronary artery disease is secondary to his hypertension.  

CONCLUSIONS OF LAW

1.  Hypertension was incurred during active duty service.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).  

2.  The Veteran's heart disease, diagnosed as ischemic heart disease/coronary artery disease, is proximally related to his service-connected hypertension.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision the Board is granting the claims of service connection for hypertension and heart disease (coronary artery disease); the only issues resolved in this decision.  As such, no discussion of VA's duty to notify and assist is necessary.

The Veteran seeks service connection for hypertension, which he says was diagnosed soon after his separation from active duty service, and for heart disease, which he contends was caused by his hypertension.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d).  Additionally, for a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for hypertension if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (2013). 

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  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.  C.F.R. § 3.310(a).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and severity of his recurrent symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also 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.").  

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Facts

Service treatment records include the report of the Veteran's January 1967 induction examination, which shows blood pressure of 138/86; and the report of the Veteran's May 1969 separation examination, which shows a blood pressure reading of 137/88.  

On VA examination in October 1970, the Veteran's blood pressure was 148/110.  

VA treatment records dated in November 1971 show a blood pressure reading of 170/110.  VA treatment records dating from 1991 reflect elevated blood pressure readings; and VA treatment records dating from 2006 show treatment, including coronary artery bypass graft surgery, for coronary artery disease and hypertension.

In October 2010, the Veteran was accorded a VA heart examination.  During the examination the Veteran reported that he had been diagnosed with hypertension and placed on anti-hypertensive medication shortly after his separation from service.  He also reported that he was on continuous medication for control of hypertension and heart disease.  Diagnosis was "ischemic heart disease" and "hypertension."  According to the examiner, the Veteran's hypertension was not incurred in service because there was no evidence of hypertension during service by VA criteria.  The examiner did, however, state that the Veteran's ischemic heart disease/"coronary artery disease" was aggravated by his hypertension.

In August 2013 the Board referred the matter for an expert medical opinion, and in October 2013 a VHA physician stated that based on in-service readings the Veteran was pre-hypertensive during service, and that, because of this, and based on his high blood pressure readings soon after service, it is at least as likely as not that his hypertension manifested within the year after his separation from service.  She also stated that the Veteran's heart disease was aggravated by his hypertension.

Analysis

Although diastolic readings at entry into service and on separation from service were near 90, the Veteran was not diagnosed with hypertension during service.  However, there is documentary medical evidence of very high blood pressure just over a year after his separation from service, and according to a 2013 VHA expert, the Veteran's hypertension likely manifested in the year after service because he was pre-hypertensive during service.  Although the 2010 examiner pointed out that a diagnosis of hypertension was not made in the year after service, he did not comment on the significance of the 1970 findings.  The Board accordingly finds the VHA opinion to be more probative than the 2010 examination opinion.  See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 845 (Fed. Cir. 1999) (unpublished decision), cert. denied 120 S.Ct.1251 (2000) (it is not error for the Board to value one medical opinion over another, so long as a rational basis for doing so is given).  

Moreover, although there are no documented blood pressure readings during the twelve month period after service, the Veteran's blood pressure was recorded by VA as 148/110 in October 1970, and as 170/110 in November 1971.  Based on in-service readings and the earliest post-service evidence in October 1970, and according the Veteran all reasonable doubt, the Board finds that the Veteran's hypertension was at least 10 percent disabling during the presumptive period.  See Bryan, 13 Vet. App. 482, 488-89 (providing that the Board has the responsibility to weigh and assess the evidence).  Accordingly, service connection for hypertension under the presumptive provisions of 38 C.F.R. §§ 3.307, 3.309 is established.  

In addition to the foregoing, while the Veteran was not diagnosed with coronary artery disease during service, both a VA examiner and a VHA expert opined that the Veteran's coronary heart disease is related to his hypertension; and there is no evidence to the contrary.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment).  As such, service connection for coronary heart disease is also warranted.


ORDER

Service connection for hypertension is granted.  

Service connection for coronary artery disease is granted.


REMAND

As regards the claim for an increased rating for the service-connected right knee disability, the Veteran, through his representative, maintains that his service-connected right knee has gotten worse since his last VA examination in 2008.  As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected knee disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (providing that a veteran is entitled to a new examination after a two-year period between the last ... VA examination to determine the current nature and severity of his service-connected disability).  On remand all VA treatment records dated after March 2012 should be associated with the claims file.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  And, as the Veteran's service-connected disability picture has changed, and in light of the Social Security disability evidence, the agency of original jurisdiction must adjudicate the Veteran's entitlement to a TDIU rating.  See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (noting that TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected).   

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran VCAA notice on the issue of entitlement to TDIU.

2.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his left knee disability and the impact of his service-connected disabilities on his service-connected disability on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

3.  Associate with the claims file, either physically or electronically, all VA medical records pertaining to the Veteran dated after March 2012.  Any other pertinent records identified by the Veteran during the course of the remand should also be obtained and associated with the claims file, following the receipt of any necessary authorizations from the Veteran.  

If no records are found and it is determined that further attempts to obtain the records would be futile, notify the Veteran and his representative of the negative results in accordance with 38 C.F.R. § 3.159(e), and allow the Veteran an opportunity to submit the sought-after records.

4.  Schedule the Veteran for a new VA examination to ascertain the severity of his service-connected right knee disability.  The claims folder should be made available and reviewed by the examiner and all necessary tests should be conducted.  All findings reported in detail.  The examiner must also discuss the impact of the Veteran's right knee disability on his ability to work. 

Range of motion testing must be done, and all findings reported in detail.  The examiner must also discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, and pain on use, and provide an opinion as to the degree to which this pain further limits movement of the knee, i.e., the extent of his pain-free motion.  

The examiner should also discuss the presence of any right knee instability and state whether the instability is best characterized as slight, moderate, or severe.

A complete rationale for all opinions should be set forth in a legible report.

5.  Then, re-adjudicate the appeal for a higher rating for the Veteran's right knee disability; and adjudicate the intertwined issue of entitlement to a TDIU.  If any benefit sought is not granted in full, issue the Veteran a supplemental statement of the case and provide the Veteran and his representative an opportunity to respond before returning the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs