Citation Nr: 1604641 Decision Date: 02/08/16 Archive Date: 02/18/16 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 hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 3. Entitlement to a compensable disability rating for erectile dysfunction. 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 (hypertension) and January 2015 (erective dysfunction) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In an October 2013 decision, the Board 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. The Board remanded the hypertension claim to the AOJ for additional development in October 2014 and in June 2015. It also remanded the erectile dysfunction claim to the AOJ in June 2015. Both claims are properly before the Board at present. FINDINGS OF FACT 1. The Veteran's hypertension did not manifest during service or within one year of separation from service, was not caused by his service, and was not caused or aggravated by his service-connected PTSD. 2. The Veteran has no deformity of the penis. CONCLUSION OF LAW 1. The criteria for service connection for hypertension have not all been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). 2. The criteria for a compensable disability rating for erectile dysfunction have not all been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.115b, Diagnostic Code 7522 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection - Hypertension VA received the Veteran's claim of entitlement to service connection for hypertension in January 2008. He contended that his hypertension is secondary to his service-connected PTSD. 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) (2015). "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). Certain chronic diseases, including hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). 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 (2015). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or he result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Id. Such increase in severity is referred to as aggravation of a nonservice-connected disease or injury by the service-connected disease or injury. Service treatment records reveal no complaints of or treatment for hypertension. The Veteran's blood pressure reading on his June 1968 entrance examination was 120\70. At a July 1969 pre-deployment (to Vietnam) physical, the Veteran's blood pressure reading was 102/60. During the June 1972 discharge examination it was 120/80. These readings do not approach VA's regulatory definition of hypertension set out in 38 CFR § 4.104, Diagnostic Code 7101, note 1. These are the sole pressure readings reflected in the service records. No readings are noted with treatment of any other condition. Further, elevated blood pressure readings were not identified as such in the record and hypertension was not diagnosed. Based on these findings, hypertension was not first manifested on active duty service. The evidence does not show, and the Veteran has not asserted, that his hypertension manifested within one year of separation from active service. In essence, the record does not reflect, and the Veteran does not assert, that hypertension had its onset in service. Rather, the Veteran maintains that his hypertension is secondary to his PTSD. The first evidence in the claims file of high blood pressure readings and/or a diagnosis of hypertension comes from Veteran's VA outpatient treatment records dated in 2003. A July 2003 VA outpatient record shows that the Veteran's blood pressure was 145/88, and the assessment was hypertension. The note also indicates that the Veteran was already on hypertension medication (Metoprolol - 50 mg. daily) prior to that date. At a VA examination in June 2008, the Veteran's hypertension was described as benign, essential hypertension, well controlled on medication without complications. The examiner indicated that no large scientific studies have shown hypertension to result from PTSD, noting that the VA Normative Aging Study did not find elevation in blood pressure in the most severe PTSD cases. Thus, the examiner opined, it was unlikely that the hypertension resulted from the Veteran's PTSD. VA provided another relevant examination in July 2009. In the May 2014 JMR, the Parties agreed that the July 2009 examiner did not address whether the Veteran's PTSD aggravated his hypertension. The Board therefore does not rely on that examination report in addressing whether the Veteran's PTSD aggravated his hypertension. The July 2009 report is evidence against a finding that the Veteran's PTSD caused his hypertension. The Veteran's three blood pressure readings on the day of the exam were all in the normal range. The examiner indicated that the Veteran's hypertension was of the essential type, was well controlled with medicine and was less likely than not associated with PTSD since a review of the medical literature does not show any definite studies that PTSD is a cause of hypertension. The examiner also opined that the hypertension was not "associated" with the Veteran's service. Pursuant to the Board's October 2014 Remand, a VA medical opinion to address the aggravation question was obtained in November 2014. The Board determined that the opinion was inadequate with regard to the question of whether the Veteran's PTSD aggravated his hypertension. The examiner referred to and quoted medical texts - Harrison's Principles of Internal Medicine and Cecil's Essential of Medicine but the examiner opined only as to whether the Veteran's hypertension was caused by his PTSD. Although this is more evidence unfavorable to the claim as far as causation, it is not evidence probative on the question of aggravation. Pursuant to the Board's June 2015 Remand, VA obtained a medical opinion solely to address whether the Veteran's PTSD has aggravated his hypertension in August 2015. That opinion the Board finds adequate. The examiner indicated that she had reviewed the Veteran's claims file and had reviewed the medical literature, including via UpToDate on the question of hypertension etiology and treatment. Ultimately she opined that there was no evidence that the Veteran's PTSD had permanently worsened his hypertension beyond its natural progression. She explained that he was currently being treated with two antihypertensive drugs, which is not unusual in that approximately 40 percent of patients with hypertension require the addition of a second drug for blood pressure by the fifth year of treatment. She explained that there is thus no evidence from review of the medical records that the Veteran's hypertension has been unusually severe or refractory to treatment. She noted that there was no evidence that his PTSD had aggravated his hypertension. She concluded by stating that it is less likely than not that his hypertension is more severe than it would otherwise be if he did not have PTSD. This is consistent with the medical records associated with the claims file. For example, his blood pressure was measures as 115/71 in January 2011 with an annotation that his blood pressure was stable on current medications. The same note separately referred to his treatment for PTSD. In argument received at the Board in October 2015 and December 2015, the Veteran's representative contended that medical evidence shows that PTSD causes hypertension. The representative stated that the Veteran contends that it is the symptoms of PTSD, including his insomnia, that causes or exacerbates his hypertension. The representative contended that accepted medical principles indicate a causal or aggravation link between mental disorders and cardiovascular disease, stating the following and citing to Cecil Textbook of Medicine (22d ed., 2004) for the following: "Psychosocial factors, such as anger, anxiety, depression, hostility, type A behavior, and various measures of social support, have been associated with the occurrence or recurrence of CVD. In addition, measures of cardiovascular physiologic reactivity have been correlated with CVD outcomes." The representative also states that the Center for Disease control (CCD) notes that sleep impairment has a wide ranging effect on health, declaring that as "chronic diseases have assumed an increasingly common role in premature death and illness, interest in the role of sleep health in the development and management of chronic diseases has grown. Notably, insufficient sleep has been linked to the development and management of a number of chronic diseases and conditions, including diabetes, cardiovascular disease, obesity, and depression. Additionally, the representative referred to WebMD as noting "that consequences of sleep deprivation include high blood pressure, heart attack, heart failure, stroke, obesity, etc. etc." He refers to a Harvard medical web site that he says explains that "various studies have found that a single night of inadequate sleep in people who have existing hypertension can cause elevated blood pressure the following day, noting that this effect may begin to explain the relationship between poor sleep and cardiovascular disease." The Board finds the adequate VA opinions more probative than the references provided by the Veteran's representative. The representative's argument is the opinion of a layperson relying on statements with language such as "has been linked," "can cause," and "have been associated with." This language is too ambiguous or speculative to rise to place the evidence in relative equipoise. It is recognized that the representative is arguing that it is the symptoms of the Veteran's PTSD, primarily insomnia, that causes or aggravates his hypertension, rather than the fact that he has PTSD. The Board does not find this argument persuasive. The fact that VA's rating schedule contemplates chronic sleep impairment as a symptom of PTSD, as specified in the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 (2015), leads the Board to the conclusion that chronic sleep impairment is an understood symptom of PTSD. It is unreasonable to assume that the 2014 examiner's opinion was so narrow as to exclude symptoms of PTSD. In short, common symptoms of PTSD were contemplated by the examiner's opinion. In this regard, it is important to note that this case has been repeatedly remand for medical opinions, and each time a medical provider has reviewed the Veteran's record the medical report has provided more and more evidence against this case, which is only support by the facts of this case. The unfailingly negative medical opinion evidence in this case cannot ignored. The argument provided by the representative is not as probative as the 2014 VA examiner's opinion. For the reasons stated above, the Board concludes that the preponderance of evidence is against a finding that the Veteran's PTSD has either caused or aggravated his hypertension and against a finding that his hypertension had onset during service or manifested within one year of separation from service. Hence, the appeal as to this issue must be denied. There is no reasonable doubt to be resolved in this regard. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Increased Rating - Erectile Dysfunction In an August 2012 rating decision, the AOJ granted service connection for prostate cancer and service connection for erectile dysfunction secondary to prostate cancer It assigned an initial noncompensable rating was assigned as well as special monthly compensation under 38 U.S.C.A. § 1114(k), as implemented at 38 C.F.R. § 3.350, for loss of use of a creative organ. The Veteran did not appeal that decision and no new and material evidence on this erectile dysfunction issue was received within one year of the mailing of notice of that decision. VA received his claim for a compensable disability rating for erectile dysfunction in July 2014 and denied that claim in the January 2015. The Veteran filed a notice of disagreement with that denial in March 2015 and in the June 2015 Remand, the Board directed the AOJ to furnish a Statement of the Case (SOC) to the Veteran. The AOJ instead furnished a Supplemental Statement of the Case (SSOC) in August 2015 that included the erectile dysfunction issue. The AOJ informed the Veteran that a response was optional. The Veteran's representative provided written argument in October 2015 and was received at the AOJ within 60 days of the mailing of the SSOC. The argument listed the erectile dysfunction issue. The AOJ has not closed the appeal of that issue. The Board finds that the October 2015 argument is sufficient to perfect an appeal to the Board and that the title of the August 2015 document (SSOC rather than SOC) is not of consequence. In his March 2015 notice of disagreement, the Veteran disagreed with the noncompensable rating and explained that his erectile dysfunction is chronic, does not respond to medication, and has a negative effect on his marriage. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's erectile dysfunction is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7522. The Board finds no other applicable criteria for rating this disability. Diagnostic Code 7522 provides that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350 . 38 C.F.R. § 4.115b. Thus, two distinct criterion are required for a compensable rating; loss of erectile power and deformity of the penis. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. There is no evidence that the Veteran has any deformity of the penis. There are numerous VA treatment records associated with the claims file none of which document any deformity of the penis or contain any suggestion that there may be deformity of the penis. The Veteran has never contended that he has deformity of the penis. It is reasonable to find that if he did have any reason to believe that he had such deformity he would have stated such in his March 2015 notice of disagreement because the AOJ informed him, in the January 2015 decision, that his claim was denied for lack of such deformity. Board thus concludes that he has no deformity of the penis. As such, the preponderance of evidence is against assigning a compensable schedular rating. It is noted that the Veteran has been granted special monthly compensation for loss of use of a creative organ and therefore has not gone uncompensated for his erectile dysfunction. An examination, based on these facts, is simply unwarranted. The Board has also considered whether an extraschedular evaluation is warranted for depression. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step which is a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's erectile dysfunction are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings based on loss of erectile power and penis deformity. The Veteran has not alleged that he has other than loss of erectile power and his March 2015 notice of disagreement is consistent with a finding that this is his only symptom. His described impairment is consistent with this symptom. Also considered is whether the combined effect of the Veteran's service connected disabilities place his disability picture outside of schedule. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The Veteran's other service-connected disabilities are PTSD, prostate cancer status post prostatectomy, chronic headaches, hemorrhoids, and an abdominal scar. The record shows that the Veteran is appropriately compensated for each of his disabilities and there is no combined effect of these other disabilities acting with the Veteran's erectile dysfunction that makes his disability picture an unusual or extraordinary one. For the reasons stated above the Board finds that the preponderance of evidence is against assigning a higher schedular disability rating for the Veteran's erectile dysfunction or for referring the matter for extraschedular consideration. Hence, the appeal as to this issue must be denied. There is no reasonable doubt to be resolved in this regard. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2015). In the instant case, VA provided adequate notice in letter sent to the Veteran in February 2008 (hypertension claim) and July 2014 (erectile dysfunction claim). VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA, and private treatment records, as well as medical records associated with a disability claim with the Social Security Administration, are associated with the claims file. VA obtained adequate medical examination/opinion evidence with regard to the hypertension claim as discussed in the Service Connection section of the instant document. There is sufficient medical evidence of record to decide the erectile dysfunction appeal so no medical examination is necessary. In this regard, the Veteran has never alleged deformity of the penis and the VA treatment notes of record do not even suggest that he has deformity of the penis. Such information would be in the treatment notes if he had deformity. The Board directives in both the October 2014 and June 2015 Remands were to obtain an adequate medical opinion addressing aggravation of the Veteran's hypertension by his PTSD and readjudication following such opinion. There has been compliance with these directives. See Stegal v. West, 11 Vet. App. 268, 271 (1998). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. ORDER Entitlement to service connection for hypertension is denied. Entitlement to a compensable disability rating for erectile dysfunction is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs