Citation Nr: 0001389 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 95-14 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for hypoxemia and hypoventilation with pulmonary hypertension and heart failure, claimed as secondary to service-connected psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T.J. Kniffen, Associate Counsel INTRODUCTION The veteran served on active duty from January to August 1946. This matter comes to the Board of Veterans Appeals (Board) from a March 1994 decision of the Denver, Colorado Department of Veteran's Affairs (VA) Regional Office (RO) which denied the veteran's claim of entitlement to service connection for hypoxemia and hypoventilation with pulmonary hypertension and heart failure secondary to his service connected psychiatric disability. Subsequently, the veteran raised the issue of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991) for the same disabilit. That matter was denied by the RO in a June 1995 rating decision. The RO subsequently furnished a Supplemental Statement of the Case to the veteran pertaining to his claim for benefits under 38 U.S.C.A. § 1151. However, a Substantive Appeal pertaining to his claim under 38 U.S.C.A. § 1151 was not filed and the § 1151 issue is therefore not in appellate status. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302 (1999). Accordingly, the Board will limit this decision to the issue of entitlement to service connection on a secondary basis. FINDINGS OF FACT 1. The preponderance of the evidence of record shows that the veteran's current hypoventilation with pulmonary hypertension and heart failure were not caused by the use of Valium for treatment of his service-connected psychiatric disorder. 2. The veteran's current hypoventilation with pulmonary hypertension and heart failure has been aggravated by the use of medications for treatment of his service-connected psychiatric disorder. CONCLUSION OF LAW Hypoxemia and hypoventilation with pulmonary hypertension and heart failure were aggravated by the veteran's service- connected psychiatric disorder; service connection on a secondary basis is warranted, but only to the extent of such aggravation. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary matters The veteran was service connected in May 1947 for schizophrenic reaction, for which a 30 percent disability rating has been in effect since 1960. He asserts that Valium was prescribed for his service-connected psychiatric disability and, as a result, he developed hypoxemia, hypoventilation with pulmonary hypertension and heart failure. Initially, the Board notes that neither the veteran nor his representative have claimed that hypoxemia and hypoventilation with pulmonary hypertension, with secondary heart failure were directly incurred in or aggravated during service. The following discussion, therefore, will only address the question of whether these disabilities were proximately due to, the result of or aggravated by the veteran's service connected psychiatric disorder. In the interest of clarity, the Board will review the applicable law and regulations, briefly describe the factual background of this case, and then proceed to analyze the claim and render a decision. Applicable law and regulations Secondary service connection Service connection may be granted on a secondary basis if a claimed disability is found to be proximately due to or is the result of a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Service connection may also be granted for any additional impairment of a non service-connected disability by a service-connected disability. See 38 C.F.R. § 4.22 (1999); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Well-grounded claims The threshold question that must be resolved with regard to this claim is whether the veteran has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). A well grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps. An allegation that a disorder is service-connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service, and medical evidence of a nexus between the in-service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), Epps, at 1468. A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary condition to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998); see Locher v. Brown, 9 Vet. App. 535, 538-39 (1996) (citing Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995), for the proposition that lay evidence linking a fall to a service-connected weakened leg sufficed on that point as long as there was "medical evidence connecting a currently diagnosed back disability to the fall"); Jones (Wayne) v. Brown, 7 Vet. App. 134, 136-37 (1994) (lay testimony that one condition was caused by a service-connected condition was insufficient to well ground a claim). If the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring the VA's duty to assist under 38 U.S.C.A. § 5107(b) (West 1991) has been fulfilled. Factual background Service medical records reflect the veteran was found to be medically unfit for military duty in August 1946 on account of psychoneurosis, the onset of which was in April 1946. In July 1947 the veteran presented for a VA medical examination. Except for psychiatric disorders, no abnormalities were noted by the examiner. VA clinical notes from December 1977 indicate the veteran was prescribed Valium by a private physician to help him sleep. 1986 VA clinical notes reflect the Veteran was prescribed diazepam. In May 1990 the veteran reported to a VA examiner he became dizzy when lying on his back. He also reported one episode of palpitation upon arising from lying down. A VA clinical record from April 1992 indicates a diagnosis of hypertension. The veteran was diagnosed with significant nocturnal and daytime hypoxemia and hypoventilation culminating in significant pulmonary hypertension with some mild heart failure by T.S., M.D. in November 1993. Dr. T.S. further stated the veteran's hypoventilation was adversely affected by sedative medications during the previous eighteen years. It was stated by Dr. T.S. that Valium can suppress ventilatory drive in persons who are predisposed to such a disability. Dr. T.S. indicated a concern that Valium had contributed to some of the veteran's health problems and reiterated these concerns in an April 1995 letter in which Dr. T.S. indicated not being aware of the veteran being predisposed to suppressed ventilatory function. In 1993 J.M., M.D., a VA staff psychiatrist stated in a letter that the veteran had been treated at the Denver VA medical center since 1975. During his period of treatment the veteran was prescribed diazepam. In March 1997, the Board remanded this case to the RO for additional development. Specifically, the case was remanded to obtain VA medical examinations by specialists in cardiovascular and pulmonary disease, asking each examiner to furnish an opinion concerning whether it is at least as likely as not that the veteran's long-term use of Valium or similar medications caused or aggravated the veteran's hypoxemia and hypoventilation with pulmonary hypertension and heart failure. If such use of medications for the veteran's psychiatric disability caused an increase in the severity of these disabilities, the examiners were requested to specify the extent to which such disabilities were aggravated. The veteran presented for a VA special pulmonary medicine evaluation in May 1998. The examiner was requested to assess hypoxemia and hypoventilation with pulmonary hypertension and heart failure. The examiner noted the veteran had been taking Valium for the previous twenty years. The examiner diagnosed the veteran with cor pulmonale as secondary to sleep apnea combined with hypoventilation syndrome. Regarding the use of Valium, the examiner stated the use of it should not cause hypoventilation if the veteran was not unconscious from heavy sedation, which according to the examiner's review of the claims file was not shown. The examiner concluded that the veteran's use of Valium did not cause the veteran's hypoventilation or pulmonary disability. The examiner, however, did state that it was as likely as not that the veteran's use of Valium aggravated the veteran's hypoventilation and sleep apnea. As to the degree of aggravation, however, the examiner stated it was nearly impossible to answer this question since the evidence available did not indicate whether the veteran was predisposed to hypoventilation before he started using Valium. At most the examiner estimated the veteran's hypoventilation was aggravated to a degree of less than 5 percent by the use of Valium. The veteran presented for a VA cardiology evaluation in June 1998. The examiner examined the veteran in view of the following question: whether it is at least as likely that the veteran's long-term use of Valium and similar medications caused or aggravated hypoxemia and/or hypoventilation, with consequence of producing or contributing to pulmonary hypertension and heart failure. The examiner stated an opinion that it was not as likely as not that the veteran's use of Valium for approximately eighteen years materially contributed to hypoventilation and hypoxemia sufficient to contribute to his pulmonary hypertension which the examiner described as mild. However, the examiner stated "a very minor contribution might exist." The examiner did diagnose the veteran with hypoventilation and pulmonary hypertension with recurrent congestive heart failure, specifically pointing out that a May 1998 echocardiography revealed mild pulmonary hypertension. Analysis Preliminary matters - well grounded claim; duty to assist; standard of proof The Board concludes that the veteran has presented a well- grounded claim. Dr. T.S. stated in 1993 and 1995 that the veteran's hypoventilation was adversely impacted by sedative medications, specifically stating a concern that the veteran's use of Valium had contributed to his health problems. The Board concludes, therefore, that the veteran has presented the required medical nexus evidence to connect the asserted secondary condition to his service-connected psychiatric disorder. See Velez v. West, 11 Vet. App. 148, 158 (1998). The Board is satisfied that all relevant evidence pertaining to this claim is now of record and the statutory duty to assist the veteran in the development of evidence pertinent to his claim has been met. The Board remanded this case in March 1997 for additional development, specifically to obtain medical opinions from pulmonary and cardiology experts as described above. Both of these expert opinions have been obtained and the requested additional development has been completed. It is noted that the veteran and his representative have been given ample opportunity to present evidence and argument in support of his claim. Once a well-grounded claim has been established, the Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed.Cir. 1997) and cases cited therein. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Discussion In the March 1997 remand, the Board requested a specific opinion as to whether it was at least as likely as not that the veteran's long-term use of Valium or similar medications caused or aggravated his hypoxemia and hypoventilation with pulmonary hypertension and heart failure. The Board finds that the two VA medical opinions obtained in response to the remand of March 1997 are responsive to the specific request of the Board as to the nature and extent of the veteran's asserted disabilities. The question, then, is whether the use by the veteran of Valium to treat his service connected psychiatric disorder either 1) caused or 2) aggravated the hypoxemia and hypoventilation with pulmonary hypertension and heart failure. The Board will separately address each of these sub-issues. Causation In 1998 both the VA cardiologist and pulmonary expert stated the use of Valium by the veteran did not cause his hypoventilation or pulmonary disability. Lacking medical records showing the veteran was under heavy sedation that caused him to be unconscious, no such finding could be made according to both VA examiners. The Board notes that in 1993 and 1995 Dr. T.S. did not state that the veteran's use of Valium caused his hypoventilation, pulmonary hypertension with mild heart failure, in the absence of medical evidence the veteran was or was not predisposed to hypoventilation. Having weighed the evidence of record, and for the reasons and bases stated above, the Board concludes that the preponderance of the evidence is against the veteran's claim that his use of Valium to treat his service-connected psychiatric disability caused his current hypoventilation with pulmonary hypertension and heart failure disabilities. There is no competent and probative evidence to the contrary. To the extent that the veteran contends that the medications caused the claimed disability, his lay opinion is entitled to no weight. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Aggravation In 1998 the VA pulmonary examiner stated it was as likely as not that the veteran's use of Valium aggravated the veteran's hypoventilation. The VA cardiologist agreed, as did Dr. T.S. who stated in 1993 and 1995 that the veteran's hypoventilation disability was adversely affected by sedative medications and his use of Valium contributed to his health problems. As noted above, service connection may also be granted on a secondary basis if a non service-connected disability (in this case, the use of Valium to treat a psychiatric disorder) is aggravated by a service-connected disability, but only to that degree over and above that existing prior to the aggravation. See Allen, supra; see also 38 C.F.R. § 4.22 (1999). Two VA medical examiners and Dr. T.S. alluded to the possibility of aggravation of the veteran's hypoventilation with pulmonary hypertension and heart failure by the use of Valium to treat his service-connected psychiatric problems. The Board cannot identify any medical evidence to the contrary. Accordingly, the Board concludes that the evidence of record supports a grant of service connection for hypoventilation with pulmonary hypertension and heart failure to the extent, and only to the extent, that such was aggravated by the service-connected psychiatric disorder. In short, based on the evidence of record, the Board concludes that the medical evidence of record establishes that the hypoventilation with pulmonary hypertension and heart failure has been aggravated by the service-connected disability, and secondary service connection is granted only to the extent of such aggravation. ORDER Service connection for hypoxemia and hypoventilation with pulmonary hypertension and heart failure is granted, to the extent that such disabilities were aggravated by service- connected psychiatric disorder. Barry F. Bohan Member, Board of Veterans' Appeals Trademark for preparations of diazepam, which is a medication used in the treatment of anxiety disorders. DORLANS'S ILLUSTRATED MEDICAL DICTIONARY 462, 1792 (28th ed. 1994).