Citation Nr: 1526978 Decision Date: 06/24/15 Archive Date: 06/30/15 DOCKET NO. 07-11 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for chronic headaches. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to a compensable disability rating for erectile dysfunction (ED). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to August 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2008 and August 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In the July 2008 decision, the RO adjudicated the hypertension and headaches claims. In the August 2012 decision, it adjudicated the erectile dysfunction claim. In his September 2009 VA Form 9, the Veteran requested a hearing before a member of the Board. He withdrew that request in writing in January 2010, delaying the case. In an October 2013 decision, the Board reopened the claim of service connection for headaches, and remanded the underlying claim on the merits to the agency of original jurisdiction (AOJ) for further development. It also denied the appeal as to service connection for hypertension. The Veteran appealed the October 2013 Board denial of the appeal as to hypertension to the U.S. Court of Appeals for Veterans Claims (Court). In May 2014, the Court granted a joint motion for partial remand (JMR) of the Veteran and the Secretary of Veterans Affairs, vacated the October 2013 Board decision as to the hypertension denial, and remanded that matter to the Board for action consistent with the terms of the JMR. In October 2014, the Board remanded both the hypertension and the headaches claims to the AOJ for additional development. They have been returned to the Board for appellate consideration. The issues of entitlement to service connection for hypertension and of entitlement to a compensable disability rating for erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran's current chronic headaches had onset during his active service. CONCLUSION OF LAW The criteria for service connection for chronic headaches have all been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303(a) (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). "To establish a right to compensation for a present disability, a Veteran must show: "(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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran was separated from active duty on August 17, 1972. Twenty-five days later, on September 11, 1972, VA first received a claim of entitlement to service connection for headaches. The next month, in October 1972, the AOJ denied the claim in a decision that became final. In July 2007, the Veteran filed a claim for service connection for headaches and the Board reopened the claim in the October 2013 decision. Service treatment records include March 1968 reports of medical examination and of medical history for the purpose of "Air Force." These are reports from the time of entrance into active service. There is no noting of headaches on the report of medical examination and his head and neurologic system were found to be normal on clinical evaluation. In the report of medical history the Veteran indicated that he had never had any of a preprinted list of conditions including frequent or severe headaches. July 1969 reports of medical examination and medical history also show that he had normal clinical evaluations of his head and neurologic system and include his denial of ever having frequent or severe headaches. Indicated on the medical history form is that it was for the purpose of going to Vietnam. January 1972 reports of medical examination and medical history, for the purpose of separation from active service are the same as the earlier reports as to clinical evaluations for his head and neurologic system and his denial of frequent or severe headaches. Service treatment records document the Veteran's report of headache and diarrhea of 4 days duration in July 1971. The impression was enteritis. He sought treatment in April 1972 for frontal headache, along with loose stools and nausea. The impression was viral syndrome. During an October 1972 VA examination, the Veteran reported that his headaches began when he was six years old. He described his headaches as localized to the frontal area. The Veteran also reported that he was knocked unconscious from a blow with a baseball bat at age eight or nine. The October 1972 examiner diagnosed headaches, by history, of unknown etiology. In a letter received at VA in November 1972, the Veteran reported that he had employment difficulty due to his headaches. In a statement received at VA in December 1972, he reported that he had weekly headaches. Received at VA in January 1973 is a statement from "P.S., D.O. documenting that the physician had treated the Veteran for headaches in December 1972 and January 1973 and that the Veteran reported to the physician that he had the headaches since service. In October 1973, VA received from the Veteran his statement that he had to quit school and his job because of headaches. VA treatment notes from October 1973 document that the Veteran sought treatment for headaches, diagnosed as vascular headaches. The Veteran's report of headaches that began at age six raised the question in this case as to whether his headaches preexisted service. The headaches were not noted on his entrance examination so in order to rebut the statutory presumption of soundness, there would have to be clear and unmistakable evidence that the headaches preexisted service and clear and unmistakable evidence that the headaches were not aggravated by his service. See 38 U.S.C.A. § 1111 (West 2014). In October 2013 the Board remanded the headaches issue to the AOJ to obtain a medical opinion. The purpose of this remand was to obtain evidence to determine whether the statutory presumption that the Veteran was in sound condition when he was accepted into service applied or was rebutted. The Board specified that the examiner must be a neurologist. An opinion was provided in December 2013, but the examiner was not a neurologist. The AOJ returned the examination report for an opinion by a neurologist and another opinion was provided by a medical professional who was not a neurologist. The opinion includes an explanation that there was no neurologist available to provide the opinion. The opinions were that the headaches preexisted service and were not aggravated by service but the rationale supporting the opinions is such that the Board finds that the opinions do not rise to the level of "clear and unmistakable evidence" of either preexistence or lack of aggravation. No other evidence of record rises to that level so the presumption of soundness is not rebutted (it's a hard standard to meet, notwithstanding significant evidence in this case against the claim). As the Veteran is presumed sound when he was accepted for service, his headaches are deemed to have had onset during service. This finding is favorable to the Veteran. The inservice element of service connection is met. There are no treatment records for many years following the early 1970s. July 2003 VA treatment records document that the Veteran presented for a routine physical examination with a history of frontal headaches for many years. The assessment was headaches of possibly psychiatric origin. At that time he reported that he had suffered from headaches since military service. In the following years, he continued to report frequent headaches since his service in Vietnam, for example, as documented in VA treatment notes from October 2003, August 2005, March 2006, and July 2007. February 2008 VA neurology attending notes document that the Veteran was seen in neurology clinic for headaches. He informed the physician that he had suffered from headaches since he was 20 years old and that the frequency and characteristics of his headaches had not changed since that time. He reported that the headaches occur once or twice per month and last between 5 and 7 days, with a severity of seven out of ten. The physician prescribed medication. In May 2008, the Veteran was seen again in a follow-up appointment in neurology clinic. He reported that the duration of his headaches had reduced to two to three days with the prescribed medication. The evidence just described is sufficient to meet the current disability element of service connection. Now the Board turns to the nexus element. The January 2014 opinion includes that statement that the Veteran's current headaches are not related to service but the only rationale is that the service treatment records do not describe migraine headaches, specifically. The December 2013 opinion was that the Veteran's current headaches were not etiologically related to service. The rationale for this opinion was that the service treatment records did not describe the headaches as chronic but noted an acute headache associated with a viral syndrome and the separation examination was negative for headaches as well as the Veteran's negative endorsement in the separation report of medical history. As to the nexus element, the Board finds that the evidence is in equipoise and therefore the element is met. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). The Veteran's statements that his headaches that had onset during service have continued to the present day are competent and probative evidence of a nexus. Whether someone has experienced headaches that have been virtually unchanged over a period of time is within the realm of knowledge of a layperson. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). There is no requirement for additional medical evidence in such cases. It is noted, however, that there is medical evidence consistent with the Veteran's report. A February 2015 VA medical opinion was obtained to address whether the Veteran's PTSD had caused or aggravated his headaches. Of significance, the examiner explained that the Veteran's headaches would have persisted even without PTSD. The examiner also stated that migraines are a disorder that is usually inherited. This opinion adds to the evidence that there is a nexus between the Veteran's current headaches and those that manifested during service. The Board does not find the different diagnoses of vascular and migraine headaches significant in this case; the Veteran has reported the same headaches as present since service. Also considered were December 2013 and January 2014 negative nexus opinions. The January 2014 opinion is of very little independent probative value because it depends entirely on the how the service treatment notes referred to the headaches. The December 2013 opinion has more weight but essentially that weight has to do with the negative findings in the separation medical examination report and the Veteran's endorsement in the separation report of medical history. That evidence, as well as the examiner's opinion that because of the viral nature of the condition in 1971 it was likely that the headaches were acute and transitory, must be weighed against the Veteran's report that his headaches persisted since their onset during service. Given the timing of the evidence, including when the Veteran first asserted entitlement to service connection, and his consistent reports that his headaches persisted since onset in service, even when he did not have a claim pending, the Board cannot find the Veteran to be other than credible in his reports. His credible and competent reports as to when he had headaches and the persistence of the headaches since service places the evidence in equipoise as to the nexus element. As the Board is required by statute and regulation to resolve reasonable doubt in favor of the claimant, the Board concludes that the nexus element is met. Because all three elements of service connection are met in this case, the appeal as to the issue of entitlement to service connection for headaches must be granted. This is a full grant of the benefit sought. As such, any defect in VA's duties to notify and assist under 38 U.S.C.A. § 5103 or § 5103A, implemented at 38 C.F.R. § 3.159, or lack of compliance with a Board remand directive, is harmless error and no discussion is necessary as to those duties or compliance. ORDER Service connection for chronic headaches is granted. REMAND In January 2008, VA received the Veteran's claim of entitlement to service connection for hypertension as secondary to service-connected PTSD. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (2014). The secondary condition shall be considered a part of the original condition. Id. The phrase "due to or the result of" encompasses disability caused by or aggravated by the service-connected disease or injury. See Allen v. Brown , 7 Vet. App. 439 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b) (2014). However, VA will not concede that a nonservice-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. Id. In the report of a June 2008 VA examination, the Veteran's hypertension is described as essential hypertension. The examiner stated as follows: "No large scientific studies have shown that hypertension results from PTSD. The VA Normative Aging Study did not find elevation in blood pressure in the most severe PTSD cases. This (sic) it is unlikely that the hypertension resulted from the veterans (sic) PTSD." The Board notes that "essential hypertension" is defined as hypertension occurring without discoverable organic cause; called also primary hypertension and idiopathic hypertension. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 896 (32nd ed. 2012). In the report of a July 2009 VA examination, the examiner indicated that the Veteran's hypertension was essential hypertension and was less likely than not associated with PTSD because a review of the medical literature did not show any definite studies that PTSD is a cause of hypertension. The examiner opined that the Veteran's hypertension was not associated with his active service. This is evidence against a finding that the Veteran's hypertension was caused by his PTSD. In denying service connection for hypertension in October 2013, the Board relied upon the July 2009 VA examination report and medical opinion. The Parties agreed that the phrase "associated with" was insufficient to indicate that the examiner had actually considered a theory of aggravation. To comply with the terms of the May 2014 JMR, in October 2014, the Board remanded the issue to the AOJ to obtain a medical opinion as to whether the Veteran's PTSD aggravated his hypertension. That opinion was provided in January 2015, and is, in its entirety, as follows: Per Cecil's Essentials of Medicine, 6th Edition, 95% of the cases (sic) of hypertension are primary in nature with secondary causes of hypertension being uncommon. To date, there have been no large-scale studies that have showed an increase in hypertension due to posttraumatic stress disorder. In fact, the Veterans Affairs Normative Aging Study did not show any increase in blood pressure in patients with the highest scores for PTSD in their sample population (Archives of General Psychiatry, January 2007, Vol. 64, pg 109-115). According to Harrison's Principles of Internal Medicine, 17th Edition, 80-95% of hypertension patients are diagnosed as having "essential" hypertension (also referred to as primary or idiopathic hypertension). In the remaining 5-20% of patients a specific underlying disorder causing the elevation of blood pressure can be identified. PTSD does not appear in the list of recognized secondary causes of hypertension. Therefore, it is unlikely that this veteran's service connected condition has caused his hypertension. It is most likely that the veteran has essential or primary hypertension. This opinion addresses only causation and, like the opinion already rejected by the Parties, does not show that the examiner even considered whether the Veteran's hypertension was aggravated by his PTSD. It does not address whether the Veteran's hypertension was worsened beyond its natural progression by his PTSD. The statement that "there have been no large-scale studies that have showed an increase in hypertension due to posttraumatic stress disorder" does not address aggravation of otherwise caused hypertension but rather addresses the incidence of the disease itself. In this regard, it is important for the RO/AMC to note that the Board must attempt to address the concerns of the JMR, notwithstanding the rational of the JMR. Similarly, the statement referring to the Veterans Affairs Normative Aging Study does not address the aggravation of otherwise caused hypertension. The statement that "in the remaining 5-20% of patients a specific underlying disorder causing the elevation of blood pressure can be identified" is not a statement regarding an increase in the severity of an individual's as the statement is couched in terms of causation, i.e. the other 80-95% of patients are diagnosed with idiopathic hypertension. It is clear from the last sentence of the opinion that the examiner did not consider the aggravation question because the examiner's conclusion is only in terms of causation. This report does not comply with the Board's October 2014 Remand directive. More importantly, it leaves the evidence effectively in the same state it was in as to the aggravation question when it was remanded by the Court in May 2014. Another remand is necessary to obtain an adequate medical opinion that addresses the aggravation prong of this case. Erectile Dysfunction Service connection for erectile dysfunction associated with prostate cancer status post prostatectomy was established in an August 2012 rating decision and a zero percent (noncompensable) disability rating was assigned. In July 2014, the AOJ received the Veteran's claim for an increased rating for that disability. The AOJ denied that claim in a January 2015 rating decision. In March 2015, the AOJ received the Veteran's Notice of Disagreement with that determination. Review of the claims file does not reveal that the disagreement has been resolved or that the AOJ has issued a statement of the case. Therefore, on remand, the RO must furnish the Veteran and his representative with an appropriate statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Ensure that the a VA medical professional, other than one who has previously addressed the hypertension issue, is provided with access to the Veteran's claims file. The examiner must review this Remand, including the narrative portion above, so as to avoid further delay by providing an inadequate opinion. It is crucial that the examiner understand that the Board is not asking for a medical opinion regarding whether the Veteran's PTSD caused his hypertension. There are numerous adequate opinions of record that address that question. What the Board requires is a medical opinion on the question of whether, regardless of the cause of his hypertension, his hypertension has become more severe, than it would be due to its natural progression, due to his PTSD. Stated another way, the question the Board needs answered is whether the Veteran's hypertension would be not be as severe as it is if he did not have PTSD. Therefore, the medical professional is asked to complete the following: Assuming that the Veteran's PTSD did not cause his hypertension, provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension is more severe than it would otherwise be if he did not have PTSD. The medical professional must provide an explanation to support whatever conclusion he or she reaches. If the medical professional concludes that the Veteran's hypertension has been worsened by his PTSD, the medical professional must provide a baseline level as to what the severity of his hypertension but for the worsening by his PTSD. 2. The AOJ must review the examination report and return the report if it is not adequate so as to avoid further delay in this case that will likely result if the opinion is inadequate. 3. Then, readjudicate the issue of entitlement to service connection for hypertension. If the benefit sought is not granted in full, furnish to the Veteran and his representative a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order. 4. Furnish to the Veteran and his representative a statement of the case in response to his March 2015 Notice of Disagreement with the January 2015 rating decision that denied an increased (compensable) disability rating for erectile dysfunction associated with prostate cancer status post prostatectomy. Return that issue to the Board only if and to the extent that the disagreement is not resolved and the appeal is perfected by the filing of a timely substantive appeal. The Veteran has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs