On appeal from the Department of Veterans Affairs (VA) Regional Office in Fargo, North Dakota
THE ISSUES
1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left ventricular hypertrophy with diastolic dysfunction.
2. Entitlement to service connection for hypertension.
3. Entitlement to service connection for mitral valve
regurgitation and dilated cardiomyopathy with left
ventricular hypertrophy and diastolic dysfunction.
4. Entitlement to service connection for diverticulitis.
5. Entitlement to service connection for irritable bowel
syndrome.
6. Entitlement to service connection for hemorrhoids.
7. Entitlement to restoration of a 10 percent rating for
pneumonia.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant and Craig N. Bash, M.D.
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The Veteran served on active duty from July 1973 to February
1976.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2007 and March 2008
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Fargo, North Dakota. In February 2009, the
Veteran testified at a video hearing before the undersigned
with his witness, Dr Bash, testifying live at the Board.
A review of the record on appeal shows that the claim of
service connection for mild left ventricular hypertrophy with
diastolic dysfunction was previously denied by the Board in
July 2007. That decision is final. 38 U.S.C.A. § 7104 (West
2002). In September 2007, the Veteran filed both an
application to reopen a claim of service connection for left
ventricular hypertrophy with diastolic dysfunction and a new
claim of service connection for mitral valve regurgitation
and dilated cardiomyopathy. While the RO treated both these
heart disorder claims as a single claim to reopen in the
December 2007 rating decision, following the guidance of the
United States Court of Appeals for the Federal Circuit in
Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), the Board has
recharacterized the issues on appeal as a claim to reopen for
left ventricular hypertrophy with diastolic dysfunction and
an original claim for mitral valve regurgitation and dilated
cardiomyopathy.
Accordingly, while the claim of service connection for mitral
valve regurgitation and dilated cardiomyopathy may be
considered on the merits by the Board, the claim of service
connection for left ventricular hypertrophy with diastolic
dysfunction may only be considered on the merits if new and
material evidence has been submitted since the last final
decision. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2008).
Next, the Board notes that for reasons that will be explained
in more detail below, the evidence of record is sufficient to
reopen the claim of entitlement to service connection for
left ventricular hypertrophy with diastolic dysfunction and
in the interest of judicial economy the Board has
characterized the resulting service connection claim as
entitlement to service connection for mitral valve
regurgitation and dilated cardiomyopathy with left
ventricular hypertrophy and diastolic dysfunction (heart
disorder).
At the February 2009 hearing, the Veteran withdrew his claims
of entitlement to service connection for headaches and
dizziness as well as his application to reopen his claims of
service connection for chronic arthritis also claimed a
bilateral cubital tunnel syndrome, chronic bursitis, chronic
tendonitis, and chronic myositis. 38 C.F.R. § 20.204(b)
(2008) (a substantive appeal may be withdrawn at any time
before the Board promulgates a decision). Accordingly, the
only issues on appeal are as stated on the cover page of this
decision.
A review of the claims files shows that the Veteran, at the
February 2009 hearing, raised a claim of entitlement to an
increased rating for pneumonia. This issue, however, is not
currently developed or certified for appellate review.
Accordingly, it is referred to the RO for appropriate action.
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2)
(West 2002).
The issues of entitlement to service connection for
diverticulitis, hemorrhoids, and irritable bowel syndrome as
well as entitlement to restoration of a 10 percent rating for
pneumonia are being remanded and 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 evidence received since the July 2007 Board decision
is new and when considered with previous evidence of record
relates to an unestablished fact necessary to substantiate
the claim of entitlement to service connection for left
ventricular hypertrophy with diastolic dysfunction.
2. The competent and credible evidence of record shows that
the Veteran's hypertension was caused by his military
service.
3. The competent and credible evidence of record shows that
the Veteran's mitral valve regurgitation and dilated
cardiomyopathy with left ventricular hypertrophy and
diastolic dysfunction was caused by his service connected
hypertension.
CONCLUSION OF LAW
1. The Veteran has submitted new and material evidence
sufficient to reopen the claim of entitlement to service
connection for left ventricular hypertrophy with diastolic
dysfunction. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156(a) (2008).
2. Hypertension was caused by military service. 38 U.S.C.A.
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2008).
3. Mitral valve regurgitation and dilated cardiomyopathy
with left ventricular hypertrophy and diastolic dysfunction
was caused by service connected hypertension. 38 U.S.C.A.
§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.310 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSIONThe Veterans Claims Assistance Act of 2000 (VCAA)
As to the VCAA, because the Board is rendering a decision in
favor of the Veteran to the extent outlined below, a
discussion of the VCAA is unnecessary at this time.
The Claim to Reopen
Service connection for left ventricular hypertrophy with
diastolic dysfunction was previously denied by the Board in a
July 2007 decision because the evidence did not show that it
was, among other things, causally or etiologically related to
service.
The law provides that if new and material evidence has been
presented or secured with respect to matters which have been
disallowed, these matters may be reopened and the former
disposition reviewed. 38 U.S.C.A. § 5108. New evidence
means existing evidence not previously submitted to agency
decision makers. Material evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought
to be reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a).
The United States Court of Appeals for Veterans Claims
(Court) has held that in determining whether the evidence is
new and material, the credibility of the newly presented
evidence is to be presumed. Kutscherousky v. West,
12 Vet. App. 369, 371 (1999) (per curiam). The Board is
required to give consideration to all of the evidence
received since the July 2007 Board decision in light of the
totality of the record. See Hickson v. West,
12 Vet. App. 247, 251 (1999).
Using these guidelines, the Board has reviewed the additional
evidence associated with the claims folders since the
decision in question and finds that the evidence includes
October 2007, January 2008, and February 2009 letters as well
as his February 2009 hearing testimony Dr. Bash in which he
opined that the Veteran's left ventricular hypertrophy with
diastolic dysfunction had its onset during the claimant's
military service and/or was caused by pneumonia and/or
hypertension.
These statements, the credibility of which must be presumed,
Kutscherousky, supra, provides for the first time medical
evidence that current left ventricular hypertrophy with
diastolic dysfunction is due to military service or a service
connected disability. Thus, the Board finds that the
additional medical evidence is both new and material as
defined by regulation. 38 C.F.R. § 3.156(a). The claim is
reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).
The Service Connection Claims
The Veteran and his representative contend that the
claimant's hypertension and mitral valve regurgitation and
dilated cardiomyopathy with left ventricular hypertrophy with
diastolic dysfunction began during or are a result of his
military service. In the alternative it is alleged that they
were caused or aggravated by a service connected disability.
It is requested that the Veteran be afforded the benefit of
the doubt.
Service connection is warranted where the evidence of record
establishes that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303. If a condition noted during service is not shown to
be chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b). In addition, service
connection may also be granted on the basis of a post-service
initial diagnosis of a disease, where the physician relates
the current condition to the period of service. 38 C.F.R.
§ 3.303(d). Service connection is also warranted where a
disability is proximately due to or the result of already
service-connected disability. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.310. Service connection may also be granted
when a service-connected disability aggravates a non-service-
connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995)
(en banc).
As to the provisions of 38 C.F.R. § 3.310, the Board notes
that this regulation was amended effective from October 10,
2006, and these new provisions require that service
connection not be awarded on an aggravation basis without
establishing a pre-aggravation baseline level of disability
and comparing it to current level of disability. 71 Fed.
Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of
the change was merely to implement the requirements of Allen,
supra, the new provisions amount to substantive changes to
the manner in which 38 C.F.R. § 3.310 has been applied by VA
in Allen-type cases since 1995. Consequently, the Board will
apply the older version of 38 C.F.R. § 3.310, which is more
favorable to the claimant because it does not require the
establishment of a baseline before an award of service
connection may be made.
In evaluating the evidence in any given appeal, it is the
responsibility of the Board to weigh the evidence and decide
where to give credit and where to withhold the same and, in
so doing, accept certain medical opinions over others.
Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The
Board is mindful that it cannot make its own independent
medical determinations and that there must be plausible
reasons for favoring one medical opinion over another. Evans
v. West, 12 Vet. App. 22, 30 (1999).
As to service connection for hypertension, the Board notes
that Dr. Bash in an October 2007 letter opined, after a
review of the record on appeal, that the Veteran's current
hypertension was most likely caused by his military service
because he entered service with a normal heart, he had
several high blood pressure readings in-service and shortly
after service, he currently has high blood pressure, and the
record does not contain a more likely or alternative etiology
for his current hypertension. A similar opinion was provided
by Dr. Bash at the February 2009 hearing. While the RO in
December 2007 obtained a VA opinion as to, among other
things, the origins of the claimant's current hypertension,
neither that opinion nor any other medical opinion found in
the record contradicts Dr. Bash's opinion that the claimant's
current hypertension is directly due to his military service
- as opposed to his service connected pneumonia. See
38 C.F.R. §§ 3.303, 3.310; Colvin v. Derwinski 1 Vet. App.
171, 175 (1991) (VA may only consider independent medical
evidence to support its findings and is not permitted to base
decisions on its own unsubstantiated medical conclusions).
In fact, the December 2007 VA opinion also stated ". . .
that there were several blood pressure readings in 1973 that
were in the range of hypertension."
Given this unchallenged opinion which both accurately cites
to the evidence found in the record and draws a conclusion
from this evidence that the Veteran's current hypertension
was directly caused by his military service, the Board
concludes that with granting the Veteran the benefit of any
doubt in this matter that service connection for hypertension
is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R.
§§ 3.102, 3.303; Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992) (establishing service connection requires finding a
relationship between a current disability and events in
service or an injury or disease incurred therein).
As to service connection for mitral valve regurgitation and
dilated cardiomyopathy with left ventricular hypertrophy and
diastolic dysfunction, the Board notes that the January 2005
VA heart examiner, after a review of the record on appeal and
an examination of the claimant, diagnosed left ventricular
hypertrophy with diastolic dysfunction and thereafter opined
that these heart problems were due to hypertension.
Similarly, in his February 2009 letter Dr. Bash opined that
the Veteran has two heart problems, ventricular hypertrophy
and valvula disease, and both of these problems are "likely
due to his long standing hypertension." A similar opinion
was provided by Dr. Bash at the February 2009 hearing.
Neither of these medical opinions is contradicted by any
other medical opinion of record. Colvin, supra; 38 C.F.R.
§ 3.310.
Given these unchallenged opinions citing the Veteran's newly
service connected hypertension as the caused of his current
heart disease, the Board concludes that with granting the
Veteran the benefit of any doubt in this matter, that service
connection for mitral valve regurgitation and dilated
cardiomyopathy with left ventricular hypertrophy and
diastolic dysfunction is warranted. 38 U.S.C.A. §§ 1110,
1131, 5107; 38 C.F.R. § 3.310; Allen, supra.
ORDER
The claim of service connection for left ventricular
hypertrophy with diastolic dysfunction is reopened.
Service connection for hypertension is granted.
Service connection for mitral valve regurgitation and dilated
cardiomyopathy with left ventricular hypertrophy and
diastolic dysfunction is granted.
REMAND
As to entitlement to service connection for diverticulitis,
given the post-service diagnosis of the claimed disability,
the documented in-service complaints of abdominal pain in
1973 and 1974, and Dr. Bash's February 2009 opinion that it
was "likely" the Veteran had early diverticulitis in
service as well as the similar opinion provided by Dr. Bash
at the February 2009 hearing, the Board finds that a remand
is required for a clarifying opinion as to the origins of his
diverticulitis. 38 U.S.C.A. § 5107A(d) (West 2002); McLendon
v. Nicholson, 20 Vet. App. 79 (2006); Also see Beausoleil v.
Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9
Vet. App. 521, 523 (1996) (medical opinions which are
speculative, general or inconclusive in nature cannot support
a claim).
Similarly, as to entitlement to service connection for
irritable bowel syndrome, given the in-service documentation
of the disability (see service treatment records dated in
August 1974) and the Veteran's competent statements and
testimony regarding having frequent bowel movements and
abdominal pain since that time, the Board finds that a remand
is also required for a medical opinion as to the origins of
his current problems. 38 U.S.C.A. § 5107A(d) (West 2002);
McLendon, supra; Buchanan v. Nicholson, 451 F. 3d 1331 (Fed.
Cir. 2006).
As to all the remaining issues on appeal, the Board finds
that a remand is also required to obtain and associate with
the record a copy of the transcript from the personal hearing
the Veteran attended at the RO on January 30, 2008, and his
vocational rehabilitation file. 38 U.S.C.A. § 5107A(b) (West
2002).
Accordingly, these issues are REMANDED to the RO/AMC for the
following actions:
1. The RO/AMC should obtain and
associate with the record the transcript
from the personal hearing the Veteran
attended at the RO on January 30, 2008.
2. The RO/AMC should obtain and
associate with the record the Veteran's
vocational rehabilitation file.
3. After undertaking the above
development to the extent possible, the
RO/AMC should arrange for the Veteran to
be provided a gastrointestinal VA
examination to ascertain the origins of
his diverticulitis and irritable bowel
syndrome. The claims folders are to be
provided to the examiner for review in
conjunction with the examination. After
a review of the record on appeal and an
examination of the Veteran, the examiner
should provide answers to the following
questions:
a. Is it at least as likely as not
(i.e., 50 percent or greater degree
of probability) that the Veteran's
diverticulitis and/or its residuals
began during service or are causally
linked to any incident of service?
b. Is it at least as likely as not
(i.e., 50 percent or greater degree
of probability) that the Veteran's
irritable bowel syndrome and/or its
residuals began during service or
are causally linked to any incident
of service?
In providing answers to the above
questions, the examiner should comment on
the February 2009 letter and testimony
provided by Dr. Bash regarding the
origins of the Veteran's diverticulitis.
The examiner is advised that the term
"as likely as not" does not mean within
the realm of possibility. Rather, it
means that the weight of medical evidence
both for and against a conclusion is so
evenly divided that it is medically sound
to find in favor of causation as to find
against causation. More likely and as
likely support the contended causal
relationship; less likely weighs against
the claim.
The examiner is requested to provide a
rationale for any opinion expressed.
4. After undertaking the above
development, the RO/AMC should provide
the Veteran with updated VCAA notice in
accordance with the Court's holding in
Dingess v. Nicholson, 19 Vet. App. 473
(2006). Also see 38 U.S.C.A. §§ 5103,
5103A (West 2002); 38 C.F.R. § 3.159
(2008).
5. Thereafter, the RO/AMC should
readjudicate the claims. If any of the
benefits sought on appeal remain denied,
the Veteran and his representative should
be provided a supplemental statement of
the case (SSOC). The SSOC must contain
notice of all relevant actions taken on
the claims for benefits, to include a
summary of the evidence received, and any
evidence not received, and all applicable
laws and regulations considered pertinent
to the issues currently on appeal. A
reasonable period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
DAVID L. WIGHT
Acting Veterans Law Judge, Board of Veterans' Appeals
