Veterans Medical Advisor

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                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0117748

Decision Date: 07/05/01 | Archive Date: 07/05/01

DOCKET NO. 98-00 531

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).



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
Fax 301-951-9106