Citation Nr: 1417823 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 08-30 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for congestive heart failure, to include as secondary to PTSD. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from June 1968 to June 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an adverse determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the benefits sought on appeal. The Veteran's original claim was denied by the RO in September 2004. He did not file an appeal. He later filed a petition to reopen in October 2007. Review of the record shows, however, that there were VA treatment records dating back to 1998, which were constructively of record at the time of the RO's original September 2004 decision (but not considered at the time of that decision), that demonstrated that the Veteran had a history of hypertension dating back to 1987. The RO only considered VA treatment dating back to 2000 in its original rating decision in September 2004. The Board considers a March 1999 VA treatment record demonstrating a hypertension diagnosis as early as 1987 to be new and material evidence, as the information pertinent to his claim and the time of diagnosis is a material element of the issue of service connection. 38 C.F.R. § 3.156. Additionally, the hypertension disability is considered as inextricably intertwined with the congestive heart failure disability, as the two have been interrelated in the medical treatment records. As VA was in possession of these treatment records at the time of the September 2004 RO decision, the Board finds that new and material evidence was received within a year of that decision. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); 38 C.F.R. § 3.156 . The claims of service connection were readjudicated and again denied in the 2008 rating decision, from which the current appeal originates. As new and material was submitted following the September 2004 rating decision, that decision is not final and the Veteran's initial claims of service connection remain pending. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.156 (a)-(b) . Thus, the issue on appeal is characterized as stated above. The Board finds that the September 2004 RO decision never became final. In January 2014, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing at the RO. The issues of service connection for kidney disease, secondary to PTSD and/or hypertension, and coronary artery disease, to include as secondary to herbicide exposure for purposes of retroactive benefits and/or hypertension has been raised by the record, but has not recently been adjudicated by the Agency of Original Jurisdiction (AOJ) since October 2011 (denying service connection for congestive heart failure for purposes of entitlement to retroactive benefits. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action). 38 C.F.R. § 19.9(b) (2013). FINDING OF FACT The probative evidence of record relates the Veteran's hypertension to his service-connected PTSD and shows evidence of hypertension within one year of the Veteran's discharge, and also relates his congestive heart failure to his hypertension. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, hypertension is proximately due to, the result of service-connected PTSD and/or presumptively related to the Veteran's military service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310 (2013). 2. Resolving all reasonable doubt in his favor, congestive heart failure is proximately due to, the result of the now service-connected hypertension. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Since the Board is granting the claims of entitlement to service connection for hypertension and congestive heart failure, there is no need to discuss whether there has been compliance with these duty-to-notify-and-assist obligations. II. Service connection Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran also may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, including cardiovascular-renal disease, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In addition service connection is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, the Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran seeks service connection for hypertension and congestive heart failure, to include as secondary to his service-connected PTSD. There are multiple positive medical opinions of record addressing his claim. In October 2008 a VA nurse submitted a letter noting that the Veteran had been under her care for hypertension, chronic atrial fibrillation, and hypertensive cardiomyopathy. She noted that the Veteran had hypertension for many years dating back to the early 1970s, as he recalled being treated soon after his discharge in 1971 at the VA Medical Center in Long Beach and being told he had a systolic blood pressure of over 200. It was the VA nurse's opinion that the Veteran's hypertension was definitely the cause of his heart failure. In her opinion it was as likely as not that his hypertension was present but not well-documented in the military. She further noted that "[c]ertainly his hypertension is likely as not connected to PTSD-as chronic, severe psychological stress results in elevated stress hormones (epinephrine, norepinephrine) that in turn raise blood pressure." A VA staff physician submitted opinions in October 2011 and January 2012 that the Veteran's severe hypertensive heart disease was complicated by his congestive heart failure and rate-controlled atrial fibrillation. Previous VA treatment records dated in March 2004 also note that the Veteran's hypertension was the likely etiology of his congestive heart failure. In August 2012 a VA physician determined that the Veteran's hypertension and congestive heart failure were at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that PTSD was a known cause of hypertension and coronary artery disease due to the high level of stress hormones. The VA physician further noted that hypertension tended to be difficult to control in PTSD as had been the case with the Veteran. The physician noted that the Veteran's echocardiogram done with thallium in 2004 showed fixed small defect in the basal septum; and that echocardiograms in 2006 and 2010 had shown global hypokinesia, which was due to ischemia. The physician thus determined that this indicated that by 2004 his hypertension had begun to affect his heart by causing resistance to forward blood flow and thus causing ischemia. For these reasons the physician indicated that he believed that the Veteran's hypertension was either produced by or aggravated or both by his service-connected PTSD. It was further mentioned that his hypertension had caused heart disease and more recently chronic kidney disease. The same VA physician submitted another opinion in December 2012 finding that the Veteran's hypertension and congestive heart failure were at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The physician cited to a study that found that males with PTSD were likely to have hypertension, which was due to the continuous excess level of adrinocorticoid hormones in patients with PTSD. The article also noted that patients with PTSD had a higher incidence of heart disease. Therefore, it was the physician's opinion that the Veteran's hypertension, hypertensive heart disease with subsequent heart failure, and kidney disease were all aggravated by his PTSD. The physician commented that the divergence of severity of his hypertensive illness and its complication from the natural history most likely began in the 1970s or soon after that again due to increased secretions of adrenocorticoids. The examiner finally noted that he could not measure the degree of its progression attributable to PTSD as compared to "natural history." The medical evidence in this case overwhelming supports the Veteran's claim that his hypertension is related to his service-connected PTSD. The evidence also suggests that the Veteran has had hypertension since his military service, which would warrant service connection on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309. In addition the medical evidence relates the Veteran's congestive heart failure to his hypertension. Any remaining doubt is resolved in the Veteran's favor; thus, service connection for hypertension and congestive heart failure is warranted. 38 C.F.R. §§ 3.102, 3.303. ORDER Entitlement to service connection for hypertension is granted. Entitlement to service connection for congestive heart failure is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs