Citation Nr: 1337485 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-12 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a service connection for hypertension, including secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran had active military service from June 1969 to December 1970. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT It is as likely as not the Veteran's hypertension is being exacerbated by his service-connected PTSD, even if not necessarily caused by the PTSD. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran's hypertension is proximately due to, the result of, or aggravated by his service-connected PTSD. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board sees the Veteran has been provided all required notice and assistance with this claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013) or 38 C.F.R. § 3.159 (2013). Moreover, and in any event, since the Board is fully granting this claim, even had he not received this required notice and assistance it would be inconsequential and therefore amount to, at most, nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102 (2013). VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on an individual case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). There simply is no such possibility in this particular instance, seeing as though the Veteran is receiving the requested benefit. Accordingly, the Board will address the merits of the claim. Legal Criteria There are different ways of showing entitlement to service connection for a claimed condition, which include showing the condition was directly or, if applicable, presumptively incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. The specific basis of this particular Veteran's claim, however, is that his alleged disability - namely, his hypertension - is secondarily related to his service, meaning caused or aggravated by a service-connected disability, in particular, his PTSD. See 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence confirming the Veteran has the claimed disability; (2) evidence of a service-connected disability; and (3) evidence establishing a nexus or correlation between the service-connected disability and the claimed disability. Depending on the specific condition being claimed, medical evidence is generally, though not always, required to associate the condition being claimed with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). Once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis In the August 2009 rating decision at issue, the RO denied the Veteran's claim for hypertension on a direct and presumptive basis. Since, however, he has maintained that his hypertension was caused by his service-connected PTSD, the Board will additionally consider his on this alternative, secondary, basis. In adjudicating this claim the Board must consider all potential bases of entitlement. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof). This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination. In his May 2011 substantive appeal (on VA Form 9), as reason for associating his hypertension with his PTSD, the Veteran asserted that his July 2010 VA examination indicated his blood pressure varied because it reacted to times of severe distress. He also pointed out there is research linking PTSD to hypertension. And, in any event, he believes all reasonable doubt concerning this possible correlation between these two conditions should be resolved in his favor and his claim resultantly granted. During the July 2010 VA examination mentioned, the VA examiner noted the Veteran had labile blood pressure and that, even though he had been treated extensively for his PTSD, his blood pressure varied. After reviewing the Veteran's service treatment records (STRs), the examiner found the Veteran had blood pressure readings within the normal range but did notice his blood pressure was 122/76 during his separation examination in December 1970. While personally evaluating the Veteran, the VA examiner took several blood pressure readings. See 38 C.F.R. § 4.104, Diagnostic Code 7101, which specifically concerns hypertension and indicates hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Further, according to this code, the term hypertension means the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. Id. That VA examiner observed the Veteran's first blood pressure reading was 130/70, but upon further readings during the course of the examination his systolic readings rose to 164-174-180, with a normal diastolic, and gradually it dropped back to 154/80. The VA examiner diagnosed essential hypertension and opined that it is less likely than not that the Veteran's hypertension is related to his service-connected PTSD. In this regard, the VA examiner referred to literature on health initiatives for PTSD and implications for primary care. He noted that the literature showed that existing data associated PTSD with poor self-reporting of health issues and increased utilization of medical services as well as a link between PTSD and increased morbidity. He also pointed out that the literature ultimately concluded that it was premature to draw definitive casual conclusions regarding the impact of PTSD on physical health. That July 2010 VA examiner provided an addendum opinion in February 2011. This examiner concluded that existing research was not able to determine conclusively that PTSD caused poor health. Additionally, the VA examiner opined that, as far as aggravation was concerned, that may or may not be the case and it would indeed be speculation on his part to try to establish where PTSD aggravated the Veteran's hypertension and what the baseline was and the degree of aggravation. He concluded that a further opinion could not be rendered. He based his findings on existing research and cautioned a conclusion making a casual or causal interpretation between PTSD and physical health. Moreover, he explained that it may be the case that something associated with PTSD was actually the cause of greater health problems; for example, it could be a factor associated with PTSD such as smoking. He noted that until further research actually stated that PTSD was the cause of certain illnesses, a causal relationship between PTSD and other illnesses could not be given to be exact. An examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection. Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). Further, in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record. Jones v. Shinseki, 23 Vet. App. 382 (2010) The Board finds that the July 2010 VA examination and the February 2011 addendum are inadequate. The July 2010 VA examination and February 2011 addendum are based on research that is inconclusive regarding the posited link between PTSD and the manifestation or aggravation of other diseases affecting physical health. In addition, the July 2010 VA examination contemplated a direct service connection for the Veteran's hypertension but failed to provide an opinion as to whether the Veteran's PTSD had chronically worsened, i.e., aggravated his hypertension. Two opinions are required for secondary service connection claims: 1. Is the claimed disorder "caused by" or "due to" the service-connected disability? AND 2. Is the claimed disorder "aggravated by" the service-connected disability (Allen Aggravation)? Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen, 7 Vet. App. 448; 38 C.F.R. § 3.310(b). Although the supplemental February 2011 addendum opinion continued to disassociate the service-connected PTSD from the hypertension, it was unable to render any opinion on this additional possibility of aggravation of the hypertension by the service-connected PTSD without resorting to mere speculation. In another precedent case, Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as "non-evidence", because the examiner is unable to comment on etiology without resorting to mere speculation, is "troubling." Of record, however, are treatment notes from the Veteran's private physician. A review of these record shows the Veteran received treatment from Dr. J.M. over the course of 14 years. A review of the treatment notes indicates the Veteran's blood pressure readings have varied over the years. For instance, he has had blood pressure readings of 120/80, 150/80, 120/74, 130/90, 140/90, and 112/82. A review of the treatment notes also indicates that, in July 2006, Dr. J.M. considered prescribing blood pressure medication for the Veteran. Moreover, also of record is a letter received in September 2009 in which Dr. J.M. opined that the Veteran's PTSD most likely affected his diagnosis of hypertension. Dr. J.M. noted that the Veteran had PTSD and that he had difficulty with hypertension. Dr. J.M. reasoned that, with the stress involved from his PTSD, the Veteran's hypertension would be made worse or more difficult to control, in other words aggravated. So even if one accepts the Veteran's hypertension is not necessarily caused by his PTSD, Dr. J.M. has attested that the PTSD most likely is aggravating the hypertension, which is also a ground for granting secondary service connection. Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). Thus, the Board assigns more probative weight to the Veteran's private physician's medical nexus opinion. The Board is cognizant that both the Federal Circuit Court and Veterans Court (CAVC) have specifically declined to adopt a "treating physician rule" that would give preference to statements from a treating physician. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). However, the duration and depth of a physician's treatment relationship with a Veteran is nonetheless a factor to be considered where medical opinions are in conflict. Dr. J.M.'s opinion was based on treating the Veteran for over a period of 14 years. He also adequately linked the Veteran's hypertension to his history of PTSD and, most importantly, provided explanatory rationale. Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, although that alone is not determinative of the opinion's probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Rather, also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). This is not the situation here with the private physician's opinion mentioned, which, at the very least, is as probative as the July 2010 and February 2011 VA opinions to the contrary. In this circumstance this reasonable doubt is resolved in the Veteran's favor and the claim granted. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). Rather, this need only be an as likely as not proposition, which in this instance it is, for the reasons and bases discussed. 38 C.F.R. § 3.102. ORDER The claim of entitlement to a service connection for hypertension as secondary to the already service-connected PTSD is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs