On appeal from the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to service connection for hypertension with
history of myocardial infarction secondary to service-
connected renal colic.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
William W. Berg, Counsel
INTRODUCTION
The veteran served on active duty from September 1948 to
January 1954 and is a combat veteran of the Korean War.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, that denied service connection
for hypertension with history of myocardial infarction
secondary to service-connected renal colic.
In September 2000, the Board requested the opinion of a
medical expert associated with VA, and the veteran was so
informed. The opinion of a medical expert dated in November
2000 was thereafter associated with the claims file. In
January 2001, a copy of that opinion was forwarded to the
veteran's representative at the Board, and he was given the
opportunity to submit additional evidence or argument in
support of the appeal. In February 2001, the representative
submitted additional evidence in the form of a medical
opinion from Craig N. Bash, M.D., together with additional
argument, and these submissions were associated with the
claims file. The veteran waived initial RO consideration of
the medical opinion submitted.
A rating decision dated in December 1997 denied the veteran's
claim of entitlement to a temporary total disability
evaluation under 38 C.F.R. § 4.30 based on the need for
convalescence. A rating decision dated in March 1998 denied
an evaluation in excess of 30 percent for the service-
connected renal colic and a temporary total disability
evaluation under 38 C.F.R. § 4.30. The veteran disagreed
with these determinations, and statements of the case were
issued to the veteran and his representative in October 1999
addressing these issues. A timely substantive appeal was not
received with respect to either issue. In addition, the
veteran's claim of entitlement to a total compensation rating
based on individual unemployability was denied by a rating
decision dated in July 1997, and the veteran was so informed
later the same month. He does not appear to have initiated a
timely appeal of this determination. In written arguments
dated in February 2000 and February 2001, however, the
veteran's representative again raised these issues. The
issues of entitlement to an increased rating for service-
connected renal colic, a temporary total disability
evaluation under 38 C.F.R. § 4.30, and a total disability
rating based on individual unemployability due to service-
connected disability have not been developed for appellate
consideration and are referred to the RO for action deemed
appropriate.
REMAND
The service medical records are essentially negative for
complaints or findings of hypertension, although a physical
examination in December 1953, when the veteran was in some
distress with left flank pain, revealed blood pressure of
132/92. However, the initial impression was left renal
calculus; hypertension was not diagnosed. The veteran's
blood pressure when examined for separation in January 1954
was 110/80 and a chest X-ray was negative. His
cardiovascular system was normal on clinical examination. A
VA examination in September 1954 was similarly negative for
complaints or findings of hypertension or hypertensive
cardiovascular disease. His blood pressure at that time was
134/80.
Essential hypertension was not shown until many years
following separation. The veteran maintains that his
essential hypertension was caused or chronically worsened by
his service-connected renal colic. Service connection may be
granted for disability that is proximately due to or the
result of a service-connected disease or injury. 38 C.F.R.
§ 3.310(a) (2000). When aggravation of a veteran's
nonservice-connected condition is proximately due to or the
result of a service-connected disability, the veteran shall
be compensated for the degree of disability (but only that
degree) over and above the degree of disability existing
prior to the aggravation. Allen v. Brown, 7 Vet. App. 439,
448 (1995).
The service medical records, which are extensive, are replete
with reports of treatment for kidney stones. Thus, a rating
decision dated in October 1954 established service connection
for recurrent renal colic, which was rated as hydronephrosis
under Diagnostic Code 7509 of the rating schedule.
The post service history is also reflective of episodic
hospitalizations and treatment for kidney stones, ureteral
stones, and urethral stricture. The evidence of record from
the early 1970's does not, however, confirm the presence of
hypertension or hypertensive cardiovascular disease until
many years following service. In August 1980, the veteran
was privately hospitalized with a chief complaint of urinary
retention. An examination on admission revealed a blood
pressure of 170/100. The veteran underwent a direct vision
urethrotomy at that time that confirmed the preoperative
diagnosis of urethral stricture.
The elevated blood pressure noted on the foregoing admission
appears to be the first indication of a persisting blood
pressure problem, although a blood pressure reading of 120/90
was noted when the veteran was hospitalized by VA in January
1962 for chronic cystitis and a suspected renal calculus.
When the veteran was hospitalized at a private facility for
the fifth time on July 25, 1981, with a long history of renal
colic, the admitting diagnoses were probable renal colic, and
probable urethral stone; arteriosclerotic heart disease was
to be ruled out.
The veteran was privately hospitalized at a different
facility on July 30, 1981, when he complained of right flank
pain. It was noted that this was his third hospitalization
at that facility. A history of recurrent ureteral calculi,
as well as a history of urethral stricture was noted. On
admission, he was felt to have a right ureteral calculus at
the ureterovesical junction (UCJ); a history of multiple
ureteral stones with known uric dysuria and hypercalcinuria;
and previous urethral strictures, probably resulting from
multiple stone manipulations and spontaneous stone passage.
His ECG during hospitalization revealed extensive T-wave and
anterior inversion. A chest X-ray was unremarkable. The
veteran underwent an operation for the stone, and the
diagnosis on discharge was right ureteral calculus.
The diagnoses following a VA hospitalization in November 1982
included hypertensive cardiovascular disease, on medications.
The report of hospitalization indicates that his medications
included Lasix and hydrochlorothiazide. He was still on
hydrochlorothiazide when he was hospitalized by VA in April
1989 for a right ureteral calculus. The diagnoses on
discharge included hypertension.
A private ECG during a hospitalization for urinary calculus
and urinary tract infection in December 1996 indicated the
possibility of a posterior infarct, although it was
interpreted as showing only sinus bradycardia with normal
tracing.
Thereafter, the veteran was followed by VA physicians for a
variety of complaints, prominently including his service-
connected renal colic with kidney stones. The veteran was
hospitalized at a VA medical center (VAMC) for kidney stones
in December 1996. When he was seen a day prior to admission,
it was noted that he had a significant history of
urolithiasis, urethral strictures and calculi. Attempts at
catheter insertion were difficult. He was unable to urinate,
and the urology service was consulted. A catheter was then
passed, and he was admitted for gross hematuria. He was
hospitalized at a VAMC in 1997 for urinary tract infections.
In March 1997, the veteran underwent a flexible cystoscopy
for dilation of the urethra performed by VA. The
postoperative diagnosis was urethral stricture with benign
prostatic hypertrophy obstruction.
The pertinent diagnoses following a VA examination in May
1997 were recurring episodes of kidney stones with renal
colic, recurring urinary tract infections, and proteinuria
and red blood cells in the urine on examination that day.
A VA treatment note dated in August 1997 reveals great
concern that the veteran's frequent episodes of kidney stones
were severely impacting his blood pressure, which was already
difficult to manage. His blood pressure was then 182/116.
The treating physician concluded that, conceivably, the
veteran's blood pressure problems were not caused by
arteriosclerotic heart disease but were due to the profound
effect that the kidney stones had on his renal function.
However, serum chemistries revealed normal kidney function.
A retrograde urogram at that time resulted in an impression
of apparent prostatic enlargement. The prostatic urethra was
said to be narrow.
On VA examination in October 1997, the diagnoses included
arterial hypertension, not well controlled, and a history of
anterior urethral stricture treated by frequent self-
dilatations using a catheter. The veteran also indicated
that he did not think that he had had a heart attack in 1971
but, rather, that he had gallstones. An electrocardiogram
(ECG) in October 1997 was normal.
A VA examination in April 1999 culminated in a diagnosis of
nephrolithiasis status post multiple extractions with a right
renal stone currently with residuals. It was also concluded
that the veteran had urethral stricture that was more likely
than not secondary to the passage of the stones or to
manipulations of the urinary tract to retrieve the stones in
the past.
The VA examiner in April 1999 stated that he had reviewed the
medical record and that he disagreed with the comment in the
record that there was any connection between the renal colic
and hypertension. The examiner thought that the veteran had
essential hypertension that might cause him to have transient
episodes of elevated blood pressure. However, the examiner
felt that the renal colic "more likely than not" did not
have any long-term effect on blood pressure or the control of
blood pressure.
In an opinion dated in November 2000, the Chief of the
Nephrology/Hypertension Section at a VAMC stated that he and
his colleagues had carefully reviewed the medical records and
noted that the veteran had had renal stones for more than 40
years and had been found to have hypertension for a period of
at least 20 years. The nephrologist said that they found it
very difficult to establish an association between the
recurrent episodes of renal stones and the development or
severity of hypertension. The physician stated that despite
the veteran's age, his renal function remained extremely well
preserved, which made the possibility of establishing a link
between hypertension and renal dysfunction due to renal
stones very difficult. The physician therefore concurred
with the opinion "of one of the consultants" that suggested
that the veteran has renal stones as well as essential
hypertension without evidence of a relationship between the
two disease entities.
In his February 2001 report, Dr. Bash, a neuro-radiologist
retained by the veteran's representative, opined that the
veteran's obstructive uropathy led to his hypertension. As
with the 2000 opinion of the VA nephrologist noted above, Dr.
Bash did not actually examine the veteran but based his
opinion on a review of the veteran's medical records. He
said that he agreed with the VA treating physician's
statement of August 1997.
Dr. Bash stated that it was clear from the record that the
veteran had had several procedures attempting to eliminate
his urethral strictures that were caused by his service
acquired renal stones and subsequent passage. Dr. Bash noted
that the veteran had a thick-walled bladder that was likely
due to longstanding increased bladder pressures secondary to
his service-related urethral strictures. Dr. Bash said that
in February 2001 the veteran had an abnormally high BUN and
creatinine. (A laboratory report from the Carolinas Medical
Center dated in February 2001 shows a blood urea nitrogen
(BUN) of 23 (reference range: 8-20 mg/dl and a creatinine of
1.3 (reference range: 0.7-1.2 mg/dl). Dr. Bash said that it
was his opinion that the veteran's service-caused urethral
strictures had caused the veteran to have increased
intravesicular pressure leading to a thick-walled bladder and
renal damage (obstructive uropathy). Dr. Bash said that it
was also his opinion that his obstructive uropathy had led to
his hypertension. Citing a standard medical text, Dr. Bash
noted that hypertension is commonly associated with renal
disease of diverse causes. Individuals with obstructive
uropathy may have hypertension from (1) fluid retention, (2)
increased renin secretion, and (3) decreased synthesis of
medullary vasodepressor substances. See 1 Cecil Textbook of
Medicine 591 (J. Claude Bennett, M.D., & Fred Plum, M.D.,
eds., 20th ed. 1996). (The 20th edition contains a nearly
identical passage to the one contained in the 19th edition
that was cited by Dr. Bash.)
Dr. Bash also stated that the VA nephrologist may not have
reviewed the entire record because the veteran "clearly had
hypertension in Dec[ember] 1953 linked to his in service
stone disease." Furthermore, Dr. Bash said, the generic
link between hypertension and the veteran's stone disease was
his urethral stricture, which had led to his obstructive
uropathy. Dr. Bash said that this obstructive uropathy was
not well screened for by routine BUN and creatinine levels
because a great deal of renal damage occurs before these
laboratory tests are abnormal. Dr. Bash said that the
veteran had a very high renin level and that renin directly
elevated blood pressure by way of angiotensin, as described
by Cecil. The veteran's renin was likely elevated in
response to his obstructive uropathy. Dr. Bash summarized by
saying that he disagreed with the VA nephrologist because it
was his opinion that the veteran had long-standing
obstructive uropathy secondary to his service-acquired stone
disease that had led to his thick-walled bladder and renal
damage (recently noted elevated BUN, creatinine and renin),
which had caused his hypertension.
In his opinion, Dr. Bash noted a "[p]atient history
interview" with the veteran on February 22, 2001, although
his statement is dated February 10, 2001. However, the copy
of record was faxed, apparently to the veteran's
representative, on February 27, 2001, and the date of
February 10, 2001, may represent the date of a initial draft
of this statement. In any case, he refers to reports that do
not appear to be of record and must be acquired before a
final decision can be rendered.
Although Dr. Bash reviewed the entire record, he is not a
nephrologist, urologist or cardiologist. On the other hand,
the opinion of the nephrologist is largely conclusory and
does not address the renal complications addressed by Dr.
Bash. The opinion of the VA examiner in April 1999 notes the
veteran's extensive renal history but finds that the renal
problems and hypertension are unrelated. The VA examiner
indicated that the veteran's essential hypertension caused
transient episodes of elevated blood pressure and that the
proteinuria noted on examination was "a modest amount,"
although protein had been noted in the veteran's urine on
laboratory analyses by VA in February 1997, May 1997, August
1997, September 1997, and October 1997. The proteinuria is
suggestive of renal disease, and the spikes in blood pressure
and difficulty of management must be viewed against the
background of a history of treatment for hypertension that
included hydrochlorothiazide and Tenormin over a number of
years. (The veteran appears to be on Lisinopril for his
hypertension currently.) The examiner's opinion does not
explain why it was necessary to place the veteran on
hydrochlorothiazide as early as 1982.
Moreover, the VA nephrologist's opinion in 2000 reflected a
tone of skepticism rather than outright dismissal of a link
between the veteran's renal disease and his hypertension.
The nephrologist's opinion relied, to a certain extent, to
the finding of good renal function - even in recent years as
the hypertension progressed. Dr. Bash maintains, however,
that obstructive uropathy is not well screened for by routine
BUN and creatinine levels because a great deal of renal
damage occurs before these laboratory tests are abnormal.
The Board observes that urethral stricture is a separate
ratable disability under Diagnostic Code 7518 from the renal
colic for which service connection is in effect. Dr. Bash's
opinion turns on an alleged association between complications
of renal colic culminating in obstructive uropathy on the one
hand and the development of essential hypertension on the
other. The issue of entitlement to service connection for
urethral stricture secondary to the service-connected renal
colic is inextricably intertwined with the issue of
entitlement to secondary service connection for hypertension
or hypertensive cardiovascular disease.
This issue would seem to be inextricably intertwined with the
issue currently in appellate status. See Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are
"inextricably intertwined" when a decision on one issue
would have a "significant impact" on a veteran's claim for
the second issue.) Hence, adjudication of the issue now
before the Board must be deferred pending the outcome of the
intertwined issue.
The Board also notes that there has been a significant change
in the law during the pendency of this appeal. On November
9, 2000, the President signed into law the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096,
which, among other things, eliminates the requirement that
claims be well grounded and redefines the obligations of VA
with respect to the duty to assist. This change in the law
is applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7(a), 114 Stat. 2096, 2099. See VAOPGCPREC
11-00 (all of the Act's provisions apply to claims filed
before the effective date of the Act but not final as of that
date); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991).
On remand, the RO must ensure that all development and
notification requirements of the Act are satisfied.
In view of the current posture of the case and the
comprehensive scope of the Veterans Claims Assistance Act of
2000, the Board is of the opinion that further development is
necessary. Accordingly, this case is REMANDED to the RO for
the following action:
1. The RO should contact the veteran and
request that he identify the names,
addresses, and approximate dates of
treatment for all VA and non-VA health
care providers who have treated him for
renal disability and hypertension or
hypertensive cardiovascular disease at
any time since his VA examination in
April 1999. With any necessary
authorization from the veteran, the RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran that are not currently of
record and associate them with the claims
file. This should specifically include
the medical reports and patient history
interview referred to by Dr. Bash in his
opinion of February 2001.
2. If any requested records are
unavailable, or the search for such
records otherwise yields negative
results, that fact should be clearly
documented in the veteran's claims file,
and the veteran and his representative so
notified. The veteran may also submit
any medical records in his possession,
and the RO should give him the
opportunity to do so prior to arranging
for him to undergo VA examination.
3. After associating with the claims
file all available records and statements
received pursuant to the development
requested above, the veteran should be
afforded VA examinations by a
cardiologist and a nephrologist who have
not previously examined him to determine
the nature and extent of any essential
hypertension or hypertensive
cardiovascular disease found to be
present. Any indicated studies should be
undertaken, and all manifestations of
current disability should be described in
detail. The examining physicians are
requested to review the claims file in
detail, including the service medical
records and this remand, confer, and
provide an opinion as to whether it is at
least as likely as not (50 percent
probability) that the veteran's service-
connected renal colic and any associated
complications caused or permanently
worsened any essential hypertension or
hypertensive cardiovascular disease found
to be present. The cardiologist is also
requested to provide an opinion as to
whether it is at least as likely as not
(50 percent probability) that any
essential hypertension or hypertensive
cardiovascular disease found to be
present is related to the complaints and
findings noted in service, as suggested
by Dr. Bash in his opinion of February
2001. A complete rationale should be
given for all opinions and conclusions
expressed. In particular, the physicians
are requested to specifically address the
opinions expressed by Dr. Bash in his
written submission of February 2001.
4. In connection with review of the
claim currently on appeal, the RO should
adjudicate the inextricably intertwined
claim of entitlement to service
connection for urethral stricture
secondary to service-connected renal
colic. In so doing, the RO should
undertake any development that it deems
advisable, to include an examination by a
urologist in order to obtain a nexus
opinion. Then, the RO should
readjudicate the claim of entitlement to
service connection for hypertension with
history of myocardial infarction
secondary to service-connected renal
colic. In resolving the issues of
secondary service connection, the RO
should consider the holding in Allen v.
Brown, noted above.
5. The RO should also review the claims
file and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are satisfied.
6. If the benefit sought on appeal is
not granted to the satisfaction of the
veteran, or if a timely notice of
disagreement is received with respect to
any other matter, a supplemental
statement of the case should be issued
and the veteran and his representative
provided with an appropriate opportunity
to respond. The veteran and his
representative are reminded that to
obtain appellate review of any matter not
currently in appellate status, a timely
appeal must be perfected.
Thereafter, the case should be returned to the Board for
further consideration, if otherwise in order. By this
REMAND, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is otherwise notified, but he has the right to
submit additional evidence and argument on the matter that
the Board has remanded to the regional office. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
N. R. ROBIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).
