hypertension Perman V. Brown_hypertension & Ptsd

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http://www.warms.vba.va.gov/Cova/DADS/93DADS/PERMAN.DOC

DECISION ASSESSMENT DOCUMENT

DOCKET NUMBER: 92-49 ACTIVITY: Rating

NAME: Perman v. Brown

ISSUE: Jurisdiction, reasons or bases

ACTION BY COURT: Remand Date: 6/16/93

Held: (1) A new claim for secondary service connection is separate and distinct from a prior appeal for direct service connection; and (2) an inconclusive independent medical opinion did not convey an "opinion" on the question at issue and was "non-evidence."

Facts:

The veteran is a former POW (Germany) who was rated 0% service-connected for anxiety from 1950 and 10% for PTSD from 1985. During a subsequent appeal (which apparently involved direct service connection for hypertension as well as an increased evaluation), the veteran claimed secondary service connection for hypertension and this issue was remanded for initial adjudication in December 1988. The regional office subsequently allowed an increased 30% rating for PTSD but denied secondary service connection for hypertension, and the veteran disagreed with that denial in March 1989.

The evidence included opinions that physiological stresses associated with the veteran's internment and chronic anxiety were risk factors or causes of hypertension. The BVA later obtained an independent medical opinion on the issue of proximate causation. The reviewer found that the medical literature is inconclusive on whether or not acute stress can promote the development of sustained hypertension. He indicated that there was little conclusive evidence that blood pressure remains elevated when stress resolves, and suggested that any exclusive causal role would be open to question. The reviewer consulted with another specialist who stated that there had been no definitive studies on the possibility of a causal relationship. The reviewer then concluded that he could not give a "yes or no" response. He conceded that severe stress could contribute to pathophysiologic changes in the cardiovascular system that could lead to hypertension, but qualified the possibility as speculative.

Court Analysis:

The Court concluded that it has jurisdiction since the claim for secondary service connection was distinct from an earlier appeal for direct service connection. The Court referred to its decision in Contreras v. Brown, U.S. Vet. App. No. 91-990 (4/15/93), in this connection (consolidated with Hamilton et. al., U.S. Vet. App. 90-470; in Contreras, the Court found that an earlier NOD could not comprehend issues which had not been previously claimed or adjudicated).

Based on analogy to the situation in Tirpak v. Derwinski, 2 Vet. App. 609 (1992), the Court concluded that the independent reviewer had not rendered an opinion and that his remarks did not constitute evidence one way or the other. The Court faulted BVA for failure to analyze the credibility and probative value of the favorable medical opinions, and for neglecting to include reasons or bases for its implicit finding that appellant is not entitled to the benefit of the doubt.

Service Analysis:

The jurisdictional decision is consistent with the definition of claims adopted by the Court in Hamilton. Although Contreras, involved different disabilities, a claim subsumes only the subsidiary questions which must be resolved to determine entitlement (Hamilton, page 12). Since direct service connection does not require consideration of secondary relationships, in the absence of pertinent evidence or contentions, the subsequent claim for secondary service connection was legally distinct.

"Proximate cause" is defined as "[t]he efficient cause; the one that necessarily sets the other causes in motion," and "proximate consequence or result" refers to "[o]ne which succeeds naturally in the ordinary course of things" (Black's Law Dictionary, 6th edition).

It appears that the BVA mistakenly weighed medical evidence on this issue even though none of it was, strictly speaking, relevant. The favorable opinions referred to stress/PTSD as having "an important causative role," leading to increased "risk" or "susceptibility," or constituting "a significant factor." One physician suggested that hypertension "may" reflect the cumulative effect of decades of stress, but acknowledged that there were insufficient studies on the issue.

None of the favorable evidence rendered the medical proposition in question well-grounded legally. At most, the physicians suggest that PTSD was a contributory cause in this case. It is, of course, impossible to identify the "proximate" cause of disability when medical research has yet to fully explore causal relationships scientifically - the term presupposes that they are known and factually ascertainable.

The independent reviewer could have said "no, the available medical and scientific evidence does not currently establish that PTSD was the proximate cause of hypertension," but did not understand the question sufficiently to provide such an answer. His narrative implied that there was no basis for a contrary position.

It is interesting to note that Judge Farley (the author of this opinion) questioned the validity of this type of causal connection for application of the benefit-of-the-doubt rule during oral argument. In addition, the favorable medical opinions were from psychiatrists but the BVA had not discounted their evidence based on lack of expertise. On remand, the BVA will have an opportunity to readjudicate the case in light of questions which were initially raised during Court proceedings.

In summary, this is a claim which BVA should have denied because it was not well-grounded. Instead, the BVA accepted the evidence as probative of "proximate cause" but had no negative evidence. Ordinarily, the Court now reverses in that situation, but apparently refrained due to reservations about how the questions on appeal had been framed. Since procedural instructions already require unequivocal examination reports (M21-1, Part VI, ¶ 1.03b(4)), no change in current regional office guidance is necessary. The phrasing of requests for independent medical opinions is handled on a case-by-case basis by BVA and Advisory Review personnel.

RECOMMENDED VBA ACTION: None. This case reflects the manner in which an independent medical opinion was requested and reviewed in a particular appeal, and does not require any change in the way routine opinions are obtained or considered.

APPROVED

J. Gary Hickman, Director

Compensation and Pension Service