Citation Nr: 20077902 Decision Date: 12/09/20 Archive Date: 12/09/20 DOCKET NO. 18-09 366 DATE: December 9, 2020 ORDER Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disability, is granted. Entitlement to service connection for erectile dysfunction (ED) is granted. REMANDED Entitlement to an increased rating for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to August 1, 2020, and in excess of 70 percent on and after that date. FINDING OF FACT 1. The Veteran’s hypertension is aggravated by his service-connected PTSD. 2. The Veteran’s ED is aggravated by his service-connected PTSD. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for hypertension, secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for erectile dysfunction, secondary to service-connected PTSD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1977 to July 1989, with periods of service in the Reserves thereafter. In a May 2019 decision, the Board of Veterans’ Appeals (Board) denied the Veteran’s claims for entitlement to service connection for hypertension and an initial evaluation in excess of 30 percent for acquired psychiatric disability, to include PTSD. The Veteran appealed the May 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Memorandum Decision, the Court vacated the Board’s decision and remanded the claims to the Board for readjudication consistent with the Court’s instructions. As part of the May 2019 decision, the Board remanded the issue of entitlement to service connection for ED. The issue is now properly in front of the Board. Accordingly, the appeal streams for all three issues have been merged. Preliminarily, the Board notes that the appellant has raised argument regarding whether there is clear and unmistakable error (CUE) in the processing of his claims by the RO. See August 2020 Statement in Support of Claim. This issue is not before the Board and thus will not be addressed in this decision. The Board also notes that on August 1, 2020 the Veteran appointed an individual, L.T., to represent him before the Board. To date, L.T. has not been accredited to represent claimants before the Board. On October 26, 2020, the Board sent the Veteran a letter notifying him that L.T. may not currently represent him. The Board informed the Veteran that he may represent himself, request that a Veterans Service Organization (VSO) represent him, or retain an attorney or accredited agent. The Veteran was given 30 days to inform the Board of his choice of representation. The Board did not receive a response within this timeframe. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. 1. Entitlement to service connection for hypertension, to include as secondary to an acquired psychiatric disability The Veteran contends that his hypertension is secondary to his service-connected PTSD. First, the record shows the Veteran was diagnosed with hypertension. See February 2017 C&P Examination, p. 1. Thus, the first elements of direct and secondary service connection have been met. Shedden, 381 F.3d at 1166-67; Wallin, 11 Vet. App. at 512. With regard to direct service connection, a review of the Veteran’s service treatment records (STRs) does not reveal any complaints or diagnosis of hypertension during his military service. Also the Veteran’s original May 2016 claim for the issue is listed as “hypertension secondary to stress (PTSD).” In his August 2017 NOD, he once again listed the issue as service connection for hypertension, secondary to PTSD. In August 2017, he also submitted a research article titled, “The Impact of Mood and Anxiety Disorders on Incident Hypertension at One Year.” As the competent and credible evidence of record is against finding that the Veteran has an in-service event or injury relating to hypertension, the second element of direct service connection is not met, and the Board will not further address direct service connection. Shedden, 381 F.3d at 1166-67. Regarding secondary service connection, the Board notes that the Veteran is service-connected for PTSD; thus, the second element of secondary service connection is met. Wallin, 11 Vet. App. at 512. The remaining question is whether there is a medical nexus between the Veteran’s currently diagnosed hypertension and his service-connected PTSD. As to this matter, the evidence conflicts. In February 2017, the Veteran underwent a VA hypertension examination. The examiner opined that the Veteran’s hypertension was neither caused nor aggravated by his service-connected PTSD. Regarding causation, the examiner noted the Veteran’s history of hypertension, the fact that the Veteran receives treatment for PTSD and still experienced hypertension, and other risk factors as the rationale for a negative nexus finding. Regarding aggravation, the examiner based the negative opinion based on the fact that the Veteran’s blood pressure had varied and other factors such as diet, lifestyle, and musculoskeletal pain. Notably, however, the examiner stated that the baseline level of severity of the Veteran’s hypertension could not be determined. In August 2017, the Veteran’s private physician, Dr. H.J., opined that it is as likely as not that the Veteran’s PTSD aggravates his hypertension. See August 28, 2017 Medical Treatment Record – Non-Government Facility. Dr. H.J. is a psychiatrist who had previously treated the Veteran for his PTSD. See May 11, 2016 Medical Treatment Record – Non-Government Facility. In the August 2017 opinion, Dr. H.J. stated that PTSD has been consistently associated with greater likeliness of cardiovascular morbidity. He further stated that he believes it is as likely as not that PTSD might worsen or be a cause of elevation in blood pressure. He stated that many people who are diagnosed with PTSD have an increased adrenaline axis, which may also cause an elevation in blood pressure. After careful consideration, the Board finds that the evidence regarding nexus is at least in equipoise. The February 2017 VA examiner stated that it was not possible to determine a baseline level of severity of the Veteran’s hypertension. Accordingly, the Board assigns little weight to this examination as to aggravation, as an examination regarding aggravation without known baseline of severity provides little probative value. Likewise, the August 2017 private opinion does not provide a high level of probative value, but the Board finds that it is at least equally probative as the February 2017 VA examination. This opinion speaks more to the general research of PTSD and how it relates to hypertension, rather than the Veteran’s specific case. However, Dr. H.J. did have a preexisting care relationship with the Veteran, as noted by the initial psychiatric assessment from April 2016. These notes reflect a thorough assessment of the Veteran’s PTSD and the Board finds convincing the Veteran’s clinical history with this provider. Also, Dr. H.J. holds an M.D., which means he would not only have training in the specialty of psychiatry, but general medicine, as well. The Board finds Dr. H.J’s conclusion that the Veteran’s hypertension is aggravated by his PTSD competent and credible and the opinion is entitled to at least as much weight as the February 2017 VA examination. When the evidence for an against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the third element of secondary service connection is established. See Wallin, 11 Vet. App. at 512. As all three elements of secondary service connection are met, service connection for hypertension is warranted. 2. Entitlement to service connection for ED Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury; or for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (a), (b). Regarding a current diagnosis, the Veteran is diagnosed ED with a date of diagnosis of 1985. See Dec. 2016 C&P Examination, p. 2. Next, the Veteran is currently service-connected for PTSD. See Nov. 2020 Codesheet. The issue in the case is whether the Veteran’s ED was caused or aggravated by his PTSD. 38 C.F.R. § 3.310. In December 2016, the Veteran underwent a VA examination for ED. The examiner opined that it was less likely than not that the Veteran’s ED was caused proximately due to or the result of his PTSD. In support of the opinion, the examiner stated that the Veteran’s other medical conditions, including hypertension and type II diabetes mellitus, can “affect or modify” erectile dysfunction. The examiner did not provide rationale as to why those conditions may have affected the Veteran’s ED instead of his PTSD. In August 2017, Dr. H.J. also addressed the Veteran’s ED. Dr. H.J. opined that it is at least likely as not that the Veteran’s ED is aggravated by his PTSD and associated medications. See Aug. 28, 2017 Medical Treatment Record – Non-Government Facility, p. 4. Dr. H.J. supported the rationale by noting that PTSD is characterized by a sympathetic nervous system hyperarousal, which has a significant effect on the ability to achieve an erection. Id. at 3. He also noted that many drugs used to treat PTSD may cause considerable side effects and that people suffering from psychological conditions such as PTSD are likelier to have poorer physical health. Id. In January 2020, the Veteran underwent another VA examination for ED. The examiner opined that it was less likely than not that the Veteran’s ED was aggravated beyond its natural progression by his PTSD. As to rationale, the examiner stated that there is no clinical evidence showing ED has been aggravated by any mental or medical cause and that the Veteran is able to achieve an erection without medication. This examiner did not address either the December 2016 VA examination or the August 2017 private opinion. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s ED was aggravated beyond its natural progression by his service-connected PTSD. The December 2016 opinion simply noted that other conditions the Veteran experiences “can” affect or modify ED, with no explanation as to why those conditions were more likely to affect his ED than his PTSD. Accordingly, the Board affords the December 2016 examination little probative value. The August 2017 examination, however, is afforded probative value. Dr. H.J. supported the opinion with reasonable rationale, including how PTSD can affect the Veteran’s ability to achieve an erection. As previously mentioned, the Board also notes that Dr. H.J. had a preexisting care relationship with the Veteran. Regarding the January 2020 opinion, the Board notes that the examiner did not address conflicting positive findings in the December 2016 and August 2017 opinions. Thus, the Board affords the January 2020 examination and opinion little probative value. When the evidence for an against a claim is in relative equipoise, the Board has an obligation to resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, service connection for ED is warranted. REASONS FOR REMAND Entitlement to an increased rating for PTSD in excess of 30 percent prior to August 1, 2020, and in excess of 70 percent on and after that date. In April 2016, the Veteran underwent an initial psychiatric assessment with Dr. H.J., a private psychiatrist. In this examination, the Veteran stated that he had experienced suicidal thoughts in the past, noted that he was distant from others, lost interest in the activities he once enjoyed, and felt “emotionally numb.” See May 11, 2016 Medical Treatment Record – Non-Government Facility, p. 2. He also stated in the assessment that focus and concentration had become problematic. Id. Dr. H.J. concluded that the Veteran had major impairment in several areas of functioning, including relationships and taking care of his home. Id. at p. 3. Dr. H.J. noted that the Veteran also experienced lack of trust, agitation, and hopelessness. Id. In December 2016, the Veteran underwent a VA examination for PTSD. The VA examiner concluded that the Veteran experienced “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication.” This conclusion conflicts with the private opinion by Dr. H.J. in April 2016 stating that the Veteran experienced “major impairment in several areas of functioning.” The VA examiner failed to address Dr. H.J’s opinion, and simply stated that the Veteran would be able to work, since he was seeing a private psychiatrist, his symptoms were manageable, and medication helped his sleep and mood. See December 16, 2016 C&P Examination, p. 11. In October 2020, the Veteran underwent another VA examination for PTSD. The VA examiner concluded that the Veteran experienced “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. This examiner also failed to address the contentions in Dr. H.J.’s April 2016 opinion. During the pendency of this appeal, the Regional Office granted a rating of 70 percent disabling for this issue, effective August 1, 2020. The Board finds that both the December 2016 and October 2020 examiners’ failures to consider the April 2016 assessment by Dr. H.J. renders them inadequate for adjudication purposes. Accordingly, the Board finds that a new examination is necessary to ascertain the current severity of the Veteran’s PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The examiner shall also provide a retrospective opinion as to the severity of the Veteran’s PTSD since May 2016, the date of the claim on appeal. The matters are REMANDED for the following action: Schedule the Veteran for an examination to ascertain the current severity of any acquired psychiatric disability, including PTSD. The examiner must also provide a retrospective opinion regarding the severity of the Veteran’s PTSD since May 2016, reconciling the conflicting evidence in the record. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented history and assertions. The examiner must also address the April 2016 initial psychiatric assessment by the Veteran’s private psychiatrist, Dr. H.J. If the examiner rejects the April 2016 assessment, he or she must provide rationale for doing so. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.