Citation Nr: 18143300
Decision Date: 10/18/18	Archive Date: 10/18/18

DOCKET NO. 13-02 504
DATE:	October 18, 2018
ORDER
Entitlement to service connection for muscle fatigue is granted.
REMANDED
Entitlement to service connection for hypertensive vascular disease (hypertension) to include as due to service connected coronary artery disease and exposure to an herbicide agent is remanded.
FINDING OF FACT
The evidence is at least evenly balanced as to whether the Veteran’s muscle fatigue was caused by medications prescribed for his service connected coronary artery disease.
CONCLUSION OF LAW
With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for muscle fatigue are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 1971 to December 1973.
This case comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota which among other things denied service connection for hypertension and muscle fatigue.
In February 2012, the Veteran filed his notice of disagreement, was issued a statement of the case in November 2012, and in January 2013 perfected his appeal to the Board.
The Veteran requested a Travel Board hearing with a Veterans Law Judge, and one was scheduled for August 26, 2014.  However, in July 2014, the Veteran withdrew his request for a hearing.  Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record.  See 38 C.F.R. § 20.704 (d) (2017).
In an August 2014 letter, the Veteran’s representative indicated that the Veteran wished to withdraw his appeal for hypertension and muscle fatigue.  However, in a September 19, 2018 Informal Hearing Presentation, a different representative stated that he was unable to contact the Veteran to verify the specific reasons for withdrawing the appeal and VA has to this point taken no action to withdraw the claim, thus the representative requested the claims be considered open for Board adjudication.  Given that there had previously been confusion over whether the Veteran had withdrawn his appeal or the hearing request, the Board finds that the issues listed above are still on appeal.  See August 4, 2014 Report of General Information; Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant”). 

Service Connection
Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
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. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a).
Service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a).  Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (b).
Entitlement to service connection for muscle fatigue
The Veteran has asserted that his bilateral muscle fatigue is due to statin drugs which were prescribed for his service-connected coronary artery disease.  He stated he was first instructed to take statins following his first heart attack in 2003.  
A February 2012 neurological progress note indicates the Veteran was treated for myalgias in the setting of rhabdomyolysis resulting from statin use.   
The Veteran was afforded a VA examination in September 2012 wherein the examiner noted a diagnosis for chronic myalgias of the lower extremities.  The examiner noted that the Veteran stated he was on statin cholesterol medicine and was being monitored because of past muscle ache complaints.  The examiner referenced a neurology clinic note from February 2012 which indicated the Veteran was seen for myalgias in the setting of rhabdomyolysis resulting from prior statin use.  The examiner opined that it is at least as likely as not that the muscle fatigue/weakness to include myalgias lower extremity is related to his previous rhabdomyolysis.  The examiner stated the Veteran is complaining of muscle related symptoms which have been going on since his diagnosis of rhabdomyolysis.
A November 2012 VA examination report indicated the Veteran’s statin use which was related to his rhabdomyolysis was not used for his service connected coronary artery disease, but was to treat his hypercholesterolemia which is a condition that can lead to coronary artery disease.
The Veteran provided additional internet documents from WebMD which listed rhabdomyolysis as a side effect associated with the usage of prescribed statins. 
In a September 2018 informal hearing presentation, the Veteran’s representative requested a new VA examination stating the previous examinations were inadequate as they lacked the requisite detail and rationale.  The representative argued the examiners failed to opine as to whether the Veteran’s muscle fatigue was related to service or was caused or aggravated by a service connected disability.  However, the Board finds the record adequate to grant the claim of service connection for muscle fatigue, thus a remand for an additional VA examination is deemed unnecessary.
For the following reasons, the evidence is at least evenly balanced as to whether the Veteran’s muscle fatigue is related to his treatment for service connected coronary artery disease.  The Board notes that there is support in medical literature for statins being a drug used to treat coronary artery disease.  See, e.g., Chonnam Medical Journal, Chonnam Med J. 2013 Apr; 49(1):1-6; Sacks v. West, 11 Vet. App. 314, 317 (1998) (noting the probative weight of medical literature, both by itself and when combined with other evidence).  Moreover, the Veteran has stated that he was instructed to take statins after he suffered his heart attack and is competent to do so.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay witnesses competent to report contemporaneous statements made to them by health care professionals).
Service connection may be awarded for disability caused by treatment with prescribed medications for a separate service connected disease. See Velez v. West, 11 Vet. App. 148, 157 (1998) (discussing “an implicit secondary-service-connection claim that his gastrointestinal disorder was the result of, inter alia, pain medication taken for his service-connected right-shoulder condition”).  In this case, the Veteran was prescribed a medication which is commonly prescribed to treat coronary artery disease after he suffered from a heart attack.  The Veteran has thus provided competent evidence that he was prescribed the medication to treat his coronary artery disease.  Medical literature supports for the contention that the medication prescribed is commonly used to treat the Veteran’s coronary artery disease, and the September 2012 and November 2012 examiners noted that the Veteran’s muscle fatigue resulted from the use of the prescribed medication.  Therefore, the evidence is at least evenly balanced as to whether the Veteran’s muscle fatigue was caused by the medication prescribed to treat his service-connected coronary artery disease.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the veteran, service connection for muscle fatigue, secondary to treatment for service-connected coronary artery disease, is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
REASONS FOR REMAND
Hypertension
The Veteran asserts that his hypertension was caused by Agent Orange exposure during active duty service in Vietnam, or alternatively, was caused by his service connected coronary artery disease.
For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service.  38 U.S.C. § 1116 (f).
The Veteran’s military personnel records indicate service in the Republic of Vietnam beginning September 1971.  As the Veteran served in the Republic of Vietnam during the applicable period between January 9, 1962 and May 7, 1975, he is presumed to have been exposed to herbicide agents, including Agent Orange.
The Veteran’s November 1973 medical examination report upon discharge from service was normal while his November 1973 medical history report notes shortness of breath and heart palpitations.
VA regulations define hypertension as diastolic blood pressure as predominantly 90mm. or greater, and isolated systolic hypertension as systolic blood pressure predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm, and also provide that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2014).  Multiple blood pressure readings to be taken over multiple days as specified in Note (1) of DC 7101 applies only to confirming the existence of hypertension.  Gill v. Shinseki, 26 Vet. App. 386, 391 (2013).
Post-service private treatment records note a diagnosis for hypertension, diagnosed around 1981, and a January 2013 physician letter indicates the Veteran has a current diagnosis for hypertension and cardiac disease, and notes he is on medication for blood pressure.
Unfortunately, the Board cannot make a fully-informed decision on the issue of service connection for hypertension because no VA examiner has opined as to the etiology of the Veteran’s hypertension.  The record indicates that the Veteran has a diagnosis of hypertension, is service connected for coronary artery disease, and as a Vietnam Veteran, is presumed to have been exposed to Agent Orange.  The Veteran’s service treatment records also note heart palpitations upon discharge.  The only issue that remains is to determine whether there is a nexus between his in-service heart palpitations, Agent Orange exposure, or service connected coronary artery disease and his currently diagnosed hypertension.  While hypertension is not a disease upon which service connection can be granted on a presumptive basis due to exposure to Agent Orange, the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis including as due to exposure to Agent Orange.  In this case, the Board finds that VA has a duty to provide an examination because there is evidence of a current disability, evidence establishing a relevant in-service event, injury, or disease, and an indication that his current hypertension may be associated with the Veteran’s service or another service connected disease but there is insufficient medical evidence on file to decide the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 
The Board notes that the Court has held in multiple memorandum decisions that VA’s acknowledgment in the Federal Register that there is “limited or suggestive evidence,” see 79 Fed. Reg. 20308, 20310 (Apr. 11, 2014), of an association between Agent Orange exposure and hypertension was relevant to the question of whether a VA examination was warranted in connection with a claim for service connection for this disability and the failure to discuss the Federal Register NAS findings rendered the Board’s reasons or bases inadequate, warranting vacatur and remand.  See Clark v. Shinseki, No. 12-2667, 2013 WL 6729512 (Vet. App. Dec. 20, 2013); Rodela v. Shinseki, No. 12-2894, 2013 WL 6184952 (Vet. App. Nov. 27, 2013); King v. Shinseki, No. 12–2893, 2013 WL 5428781 (Vet. App. Sept. 30, 2013); Allsopp v. Shinseki, No. 12–1847 (Vet. App. Aug. 27, 2013).
Therefore, the matter is REMANDED for the following action:
Schedule the Veteran for an examination by an appropriate physician to determine the nature and etiology of the Veteran’s hypertension.  
The physician must opine whether the Veteran’s hypertension is at least as likely as not: 
(a) related to an in-service injury, event, or disease, including exposure to Agent Orange;
(b) began during active service, manifested within the 1-year presumptive period after discharge from service, or whether the noted heart palpitations were an early symptom of hypertension during service; or
is either (i) caused or (ii) aggravated by service-connected disease, to include coronary artery disease and diabetes.
 
Jonathan Hager
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Maddox, Associate Counsel