[DECISION ASSESSMENT DOCUMENT]{.underline}

DOCKET NUMBER: 92-49 ACTIVITY: Rating

NAME: Perman v. Brown

ISSUE: Jurisdiction, reasons or bases

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

[Held]{.underline}: (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]{.underline}:

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]{.underline}:

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]{.underline}**, U.S. Vet. App. No. 91-990
(4/15/93), in this connection (consolidated with **[Hamilton
et. al.]{.underline}**, U.S. Vet. App. 90-470; in
**[Contreras]{.underline}**, 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]{.underline}**, 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]{.underline}:

The jurisdictional decision is consistent with the definition of claims
adopted by the Court in **[Hamilton]{.underline}**. Although
**[Contreras]{.underline}**, involved different disabilities, a claim
subsumes only the subsidiary questions which must be resolved to
determine entitlement (**[Hamilton]{.underline}**, 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]{.underline},
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