Citation Nr: 1413498 Decision Date: 03/31/14 Archive Date: 04/08/14 DOCKET NO. 10-05 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for atrial fibrillation, to include as secondary to posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to PTSD. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1963 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a March 2013 videoconference hearing before the undersigned. A transcript of that proceeding is associated with the Virtual VA record. The Board has reviewed all relevant documents in the Veterans Benefits Management System (VBMS) and Virtual VA paperless files in its consideration of the appeal. The issue of entitlement to service connection for heart disease was raised in April 2013 correspondence, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for hypertension, and for cervical and right shoulder disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is service-connected for posttraumatic stress disorder. 2. Atrial fibrillation is caused by the service-connected posttraumatic stress disorder. CONCLUSION OF LAW Atrial fibrillation is proximately due to posttraumatic stress disorder. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The Veteran claims that atrial fibrillation is due to his service-connected PTSD. VA regulations provide that service connection is warranted for disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). For such "secondary service connection" to be granted, generally there must be (1) medical 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). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310; see Harder v. Brown, 5 Vet. App. 183, 187 (1993). As demonstrated on the July 2009 and October 2009 examination reports, the Veteran has a current diagnosis of atrial fibrillation, status-post radiofrequency catheter ablation. The evidence also shows that he is service-connected for posttraumatic stress disorder. Each of the examiners who conducted heart examinations provided opinions linking the atrial fibrillation to PTSD. The July 2009 examiner opined that "it is at least as likely as not that sympathetic activation [due to] psychological stress could have played a role . . . in his tachyarrhythmia." In support of that opinion, the examiner noted the Veteran's psychiatric symptoms of depression and anger, and the Veteran's report that such symptoms had been present for years. The Board finds that the July 2009 examiner's opinion, which is adequately supported, consistent with the facts of record, and based on sound reasoning, is probative of the question of service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The October 2009 examiner opined, in an opinion that lacks an adequate rationale in support, that "PTSD . . . may have caused arrhythmias . . . ." The Board finds that the October 2009 opinion is not, in and of itself, sufficient for a grant of service connection, as it is speculative. Id. The opinion does, however, support the July 2009 opinion. Notably, following a July 2009 posttraumatic stress disorder evaluation, the examining psychologist opined that the effect of PTSD on the atrial fibrillation diagnosis "cannot be confirmed at this time," noting no history of mental health treatment for the Veteran, and that there was "no scientific correlation demonstrable between [atrial fibrillation] and PTSD at this time." The psychologist's reliance on the lack of a history of psychiatric treatment is an insufficient basis for a negative etiology opinion. Id. Similarly, his unsupported statement regarding a lack of demonstrable scientific correlation, without more, fails to provide adequate support for the negative opinion. The Board finds that the July 2009 psychologist's opinion has very minimal probative value, particularly when weighed against the opinions offered by physicians. Id. Considering the nexus between atrial fibrillation and service-connected PTSD, the Board finds that secondary service connection is warranted. 38 C.F.R. § 3.310 ORDER Entitlement to service connection for atrial fibrillation is granted. REMAND With regard to the issue of entitlement to service connection for hypertension, the Board has determined that, while appears likely that the Veteran has a current hypertension diagnosis, there is insufficient evidence in the file to make such a finding. Per 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), a diagnosis of hypertension must be confirmed by readings taken two or more times on at least three different days. See Gill v. Shinseki, 26 Vet. App. 386, 390-91 (2013). Presently, the only blood pressure readings of record are from the July 2009 (124/84 mmHg) and October 2009 (148/90 mmHg) examination reports, and from a January 2007 VA treatment report (130/82 mmHg). It is, however, apparent that evidence of a current diagnosis may exist in treatment records that are not currently associated with the claims file; the October 2009 examiner acknowledged a current diagnosis, and specifically referenced medical treatment records that are not available to the Board. Further, the Veteran submitted a January 2007 VA treatment record that references prior treatment. VA is obligated to assist the Veteran to obtain such records. If those records do not show a current diagnosis of hypertension, considering the blood pressure reading from October 2009, a new examination to determine the existence of a current disability is necessary. Finally, the issue of entitlement to service connection for hypertension is inextricably intertwined with the issue of entitlement to service connection for heart disease, which is referred for consideration in the Introduction section, above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Importantly, should there be a current diagnosis of hypertension already in the medical record, a grant of service connection may be possible based on the opinions of record, without need for delaying the matter during the course of developing and adjudicating the claim for service connection for heart disease. The issues of entitlement to service connection for cervical spine and right shoulder disabilities must be remanded for a new examination in light of private opinions suggesting a relationship between an in-service injury and the current disabilities. While the July 2009 and March 2013 opinions of Stephen Dohoney, D.C., arguably are speculative, they are sufficient to trigger VA's duty to provide an examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing VA treatment records. If the Veteran identifies private treatment records, request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed conditions. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file, and the RO/AMC must notify the Veteran and his representative of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. If, and only if, the record obtained on remand fails to demonstrate a disability due to hypertension, the RO should provide an appropriate examination to determine whether the appellant actually does suffer from hypertension. 3. Schedule the Veteran for a VA orthopedic examination. The examiner is to be provided access to the claims folder, any Virtual VA file, any VBMS file, and a copy of this remand. The examiner must specify in the report that the claims folder, any Virtual VA file, any VBMS file records have been reviewed. In accordance with the latest worksheets for rating cervical spine and shoulder disorders, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability. Thereafter, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current cervical spine disability began during service, is due to an event or injury during service, or is otherwise etiologically related to active duty service. The examiner must also opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current right shoulder disability began during service, is due to an event or injury during service, or is otherwise etiologically related to active duty service. The examiner is hereby informed that the Veteran is competent to report the fact of an in-service injury. The examiner must provide a complete rationale in support of any opinions proffered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented consideration of all pertinent records in Virtual VA and VBMS. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. If, and only if, the Veteran's claim for service connection for hypertension cannot be granted based on the above development, the RO should first adjudicate the referred issue of entitlement to service connection for heart disease, and then readjudicate the claim of entitlement to service connection for hypertension to include under a theory of secondary service connection. 7. Then, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs