Citation Nr: 21025761 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-30 001 DATE: April 28, 2021 ORDER Entitlement to service connection for a chronic back disorder is granted. Entitlement to service connection for hypertension, as secondary to service-connected unspecified anxiety disorder, is granted. Entitlement to service connection for a heart condition, to include atrial fibrillation, as secondary to service-connected hypertension, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his chronic back disorder is at least as likely as not related to his service 2. Resolving reasonable doubt in the Veteran’s favor, his hypertension is aggravated by his service-connected unspecified anxiety disorder. 3. Resolving reasonable doubt in the Veteran’s favor, his atrial fibrillation is secondary to his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a chronic back disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension, as secondary to service-connected unspecified anxiety disorder, on an aggravation basis, have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to service connection for atrial fibrillation, as secondary to service-connected hypertension, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1957 to July 1957 and from September 1957 until December 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of a Department of Veterans Affairs (VA) regional office (RO) rating decision. The Veteran testified before the undersigned ta a June 2019 hearing; a transcript is associated with the claims file. In a November 2019 decision, the Board reopened the claims of entitlement to service connection for a chronic back disorder and hypertension and remanded them, along with the Veteran’s claim for congestive heart failure, for VA examinations. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d).  Service connection is also warranted for a disability which is caused or aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. Aggravation of a non service-connected disability pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the disability. Rather, aggravation in this context is any incremental increase in disability attributable to service-connected disability (i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence). Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a chronic back disorder The Veteran contends that he has a chronic back disorder as a result of service. Specifically, he states that it is related to an injury to his back when he fell off a truck during service. Per a January 2020 VA examination, the Veteran is currently diagnosed with a lumbosacral strain and degenerative arthritis of the spine. Therefore, the first Shedden element is satisfied. And as stated in the November 2019 Board decision, the Veteran’s service treatment records also show that he received treatment for a back injury during service. As such, the second Shedden element is satisfied. The remaining question for the Board is whether the two are related. The Board notes that since the Veteran is currently diagnosed with arthritis of the lumbar spine, which is considered a chronic disability under 38 C.F.R. § 3.309(a), the regulations pertaining to continuity of symptomatology apply. At a January 2020 VA examination, the VA examiner opined that the Veteran’s chronic back disorder was less likely than not related to service. The examiner reasoned that the medical record did not show the Veteran complaining or receiving treatment for a back condition during service. However, as the Veteran was seen for a back injury in service, this examination is based on an incorrect factual basis and therefore inadequate. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In an August 2020 addendum opinion, the VA examiner likewise opined that the Veteran’s chronic back disorder was less likely than not related to service. She reasoned that while the Veteran sustained a back injury in service, there is no evidence he continued to suffer chronic back pain during the rest of active duty or for at least 25 years post separation. In support of the claim, the Veteran submitted a September 2020 private opinion to the contrary. Therein, his personal physician stated that his back disability is related to the in-service fall from a moving military vehicle as his “symptoms progress[ed]” over time. The Board interprets this statement to be in support of a medical finding of continuity of symptomatology regarding the back disability. It is in direct conflict with the August 2020 VA addendum opinion. Resolving all doubt in the Veteran’s favor, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s chronic back disorder is related to service. The Board weighs the August 2020 VA medical opinion and September 2020 private opinion equally as they are both well-reasoned, based on a review of the record and in-person examination of the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board, however, puts particular emphasis on the September 2020 private opinion as it is additionally based on familiarity with the Veteran and course of treatment for this back disability. Black v. Brown, 10 Vet. App. 279 (1997). Furthermore, weighing in favor of the claim are the Veteran’s numerous lay statements, to include his June 2019 testimony, contending that his back issues have continued since separation from service. The Board finds that the Veteran, as a lay person, is competent to testify to his back pain during service and consistently thereafter. See Layno v. Brown, 6 Vet. App. at 470. The Board has no reason to doubt the credibility of the Veteran. In sum, the Board concludes that the evidence is at least in relative equipoise as to whether his chronic back disorder was caused by service. As the reasonable doubt created by the relative equipoise in the evidence must be resolved in favor to the Veteran, entitlement to service connection is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for hypertension, as secondary to service-connected unspecified anxiety disorder The Veteran mainly contends that he is entitled to service connection for hypertension as secondary to his unspecified anxiety disorder. Resolving all doubt in the Veteran’s favor, the Board grants the claim. The Veteran is currently diagnosed with hypertension and service-connected for unspecified anxiety disorder. The first and second Wallin elements are thus satisfied. Regarding nexus, a September 2020 private opinion stated that the Veteran’s hypertension was exacerbated by his service-connected psychiatric disability. In an August 2020 VA examination, while the VA examiner provided a negative etiological opinion, she did state that while anxiety does not cause a permanent elevation in blood pressure, “episodes of anxiety can cause dramatic, temporary spikes in blood pressure.” Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s hypertension is aggravated by his service-connected psychiatric disability. In so finding, the Board assigns probative weight to the September 2020 private opinion’s conclusion and the August 2020 VA addendum examiner’s reasoning. Although she provided a negative opinion, the August 2020 VA examiner’s reasoning that “episodes of anxiety can cause dramatic, temporary spikes in blood pressure” is persuasive, especially in light of the precedential opinion in Ward, 31 Vet. App. at 233, which held that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, aggravation is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence.  As the Board resolves all doubt in the Veteran’s favor, no further discussion of the evidence is necessary. In sum, the evidence is at least in equipoise that the Veteran has current hypertension which is aggravated by his service-connected unspecified anxiety disorder. Entitlement to service connection for this disability is, therefore, warranted. The benefit of the doubt doctrine has been applied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The nature and extent of the Veteran’s hypertension is not before the Board at this time. 3. Entitlement to service connection for a heart condition, to include atrial fibrillation, as secondary to service-connected hypertension The Veteran contends that his heart disability, to include congestive heart failure or atrial fibrillation, is related to service. Resolving all doubt in the Veteran’s favor, the Board finds that his atrial fibrillation is secondary to his now-service-connected hypertension. As the Veteran’s medical records show a current diagnosis of atrial fibrillation and as the Veteran is service connected, by virtue of this Board decision, for his hypertension, the Veteran meets the first and second prongs for secondary service-connection. In January 2020, the Veteran was examined by VA for his heart condition. The Veteran noted a diagnosis of congestive heart disease and atrial fibrillation. The VA examiner stated that the Veteran’s congestive heart failure onset in about 1975 with reports of shortness of breath and fatigue. The VA examiner also stated that the etiology of his current atrial fibrillation is due to his hypertension. However, the VA examiner opined that his congestive heart failure was less likely than not related to service as there was no in-service injury, event, or disease during service. Resolving reasonable doubt in the Veteran’s favor, the Board finds that his atrial fibrillation is secondarily caused by his now-service-connected hypertension. Although the January 2020 VA examiner provided a negative nexus opinion regarding direct causation, her findings regarding secondary service causation are probative. In the January 2020 VA examination, she definitively states that the etiology of the Veteran’s atrial fibrillation is his hypertension. There is no medical opinion in opposition regarding a secondary theory of causation. As there is evidence in the record that reflects a causal relationship between the Veteran’s now service-connected hypertension and his atrial fibrillation, the Board finds that the evidence is in favor of the Veteran’s claim and that the third prong of the secondary service connection test has been met. Accordingly, service connection for the Veteran’s atrial fibrillation, as secondary to hypertension, is granted. The benefit of the doubt doctrine has been applied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The nature and extent of the Veteran’s heart disability is not before the Board at this time. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.