Citation Nr: 0534824 Decision Date: 12/27/05 Archive Date: 01/10/06 DOCKET NO. 04-22 740 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected bilateral tinnitus. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a headache disorder, on a direct-incurrence basis only. 3. Entitlement to service connection for a headache disorder, to include as secondary to service-connected bilateral tinnitus. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an anxiety disorder, to include as secondary to service- connected bilateral tinnitus. 5. Entitlement to service connection for a sleep disorder, to include as secondary to bilateral tinnitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R.P. Harris, Counsel INTRODUCTION The appellant was a member of the National Guard from June 1968 to October 1971, which included a period of active duty for training (ACDUTRA) from September 1968 to January 1969. He subsequently had active service from October 1971 to May 1972. Historically, a December 1979 rating decision, in part, denied service connection for headaches, tinnitus, and an anxiety disorder on a direct-incurrence basis. The appellant was provided notice of the determination and his appellate rights by a letter dated in the following month in January 1980. No appeal was taken therefrom. A rating action in November 1984 established service connection for bilateral tinnitus. A March 1988 rating decision denied service connection for an anxiety disorder, claimed as secondary to tinnitus. As the appellant was provided notice of each rating decision and did not timely express disagreement therewith, the December 1979 and March 1988 RO denials are final. They also represent the last final decisions with regard to the issue of service connection for headaches on a direct incurrence basis, and anxiety disorder service connection on direct incurrence and secondary service connection bases. Evans v. Brown, 9 Vet. App. 273, 285 (1996). See also 38 U.S.C.A. § 7105 (West 2002) and 38 C.F.R. §§ 20.200, 20.202, 20.204, and 20.302(b) (2004) (an appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal). In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2004). In June 2002, the appellant filed a request to reopen the claim for service connection for an anxiety disorder, to include as secondary to service-connected bilateral tinnitus. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Detroit, Michigan, Regional Office (RO), which denied service connection for hypertension, a headache disorder, an anxiety disorder, and a sleep disorder, each to include as secondary to service-connected bilateral tinnitus. The June 2003 rating decision did not specify that the RO had formally determined that new and material evidence had been received to reopen the headache and anxiety disorder service connection claims. However, the text of the rating decision reflects consideration of those claims de novo. Nevertheless, the United States Court of Appeals for Veterans Claims (Court) has held that the Board is obliged to determine in the first instance whether there is new and material evidence to reopen a claim, regardless of the RO's action. Barnett v. Brown, 8 Vet. App. 1 (1995). Accordingly, the headache and anxiety disorder service connection issues are for appellate consideration as characterized on the title page of this decision. In this regard, the Board notes that the appellant was provided the applicable laws and regulations pertaining to a request to reopen a previously finally denied claim by a Statement of the Case in May 2004. In April 2005, an RO hearing was held before a Decision Review Officer. In September 2005, a Travel Board hearing was held before the undersigned Veterans Law Judge. The claim of entitlement to service connection for hypertension, to include as secondary to service-connected bilateral tinnitus, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Board will render a decision herein on the other remaining appellate issues. FINDINGS OF FACT 1. An unappealed rating decision in December 1979 denied service connection for headaches, on a direct-incurrence basis only. 2. Evidence received since the December 1979 rating decision, considered in conjunction with the record as a whole, is new, and does relate to an unestablished fact necessary to substantiate the claim for service connection for headaches, on a direct-incurrence basis. 3. The record does not contain competent clinical evidence which establishes that a chronic headache disability was incurred in or aggravated by active service. 4. Competent clinical evidence of record establishes that the appellant has a chronic headache disorder that was caused by service-connected bilateral tinnitus. 5. An unappealed rating decision in December 1979 denied service connection for an anxiety disorder, on a direct- incurrence basis, and an unappealed March 1988 rating decision denied service connection for an anxiety disorder, claimed as secondary to tinnitus. 6. Evidence received since the December 1979 and March 1988 RO prior final denials, considered in conjunction with the record as a whole, is new, and raises a reasonable likelihood that appellant has an anxiety disorder that was chronically increased in severity by the service-connected bilateral tinnitus. 7. Competent clinical evidence of record establishes that the appellant has an anxiety disorder that was chronically aggravated by the service-connected bilateral tinnitus. 8. VA medical opinion of record establishes that appellant has a sleep disorder that was caused by his anxiety disorder. CONCLUSIONS OF LAW 1. Evidence received subsequent to the unappealed December 1979 rating decision, which denied service connection for headaches on a direct-incurrence basis only, is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302, 20.1103 (2004). 2. A chronic headache disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.303 (2004) 3. With resolution of reasonable doubt in the appellant's favor, a chronic headache disorder was caused by the service- connected bilateral tinnitus. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2004). 4. Evidence received subsequent to the unappealed December 1979 and March 1988 rating decisions, which denied service connection for an anxiety disorder, including as secondary to service-connected bilateral tinnitus, is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302, 20.1103 (2004). 5. With resolution of reasonable doubt in the appellant's favor, an anxiety disorder was chronically aggravated by the service-connected bilateral tinnitus. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2004); Allen v. Brown, 7 Vet. App. 439 (1995). 6. With resolution of reasonable doubt in the appellant's favor, a sleep disorder was caused by the service-connected bilateral tinnitus. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2004). In light of the Board's favorable determinations herein on the merits of the claims for service connection for chronic headaches, an anxiety disorder, as well as allowance of service connection for a sleep disorder, to the extent each was caused by, or chronically aggravated by, the service- connected bilateral tinnitus, further development with regard to VA's duty to notify and assist would serve no useful purpose. A remand is inappropriate where there is no possibility of any benefit flowing to the veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991). It should be pointed out that the VA promulgated amended regulations implementing the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). There was a new provision, 38 C.F.R. § 3.156(a), which redefines the definition of "new and material evidence." This provision is applicable only for claims filed on or after August 29, 2001. The appellant's claims to reopen claims for service connection for headache and anxiety disorders were received on or after 2002. As such, the amended provision is for application in this case. Amended 38 C.F.R. § 3.156(a) redefined the definition of "new and material evidence" as: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. The unappealed December 1979 rating decision, which denied service connection for headaches and an anxiety disorder, on a direct-incurrence basis only, and an unappealed March 1988 rating decision, which denied service connection for an anxiety disorder, claimed as secondary to tinnitus, are final and may not be reopened, in the absence of new and material evidence. 38 U.S.C.A. §§ 5108, 7104(b), 7105; 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302(a), 20.1103; Manio v. Derwinski, 1 Vet. App. 140 (1991); and Smith (William A.) v. Brown, 35 F.3d 1516 (Fed. Cir. 1994). Parenthetically, appellant has not argued any legal basis for attacking the finality of said rating decisions. In pertinent part, service connection may be granted for disability resulting from an injury or disease incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2004). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additionally, where a service-connected disability causes an increase in, but is not the proximate cause of, a nonservice-connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability. Allen, supra. Service connection is in effect for bilateral tinnitus and bilateral sensorineural hearing loss. The evidence previously considered in the aforecited unappealed December 1979 rating decision, which denied service connection for headaches and an anxiety disorder on a direct-incurrence basis, and the unappealed March 1988 rating decision, which denied service connection for an anxiety disorder, claimed as secondary to tinnitus, included appellant's wartime active service medical records, which did not include any findings or diagnoses pertaining to a headache or anxiety disorder, although an April 1972 medical questionnaire completed at service discharge noted complaints of frequent headaches, excessive worry, sleep trouble, hearing loss, and ringing in the ears. His service record noted that he was in a field artillery unit. A July 1977 private clinical record noted that in May 1976, appellant was seen for nervous problems. It was noted that his problems were suggestive of a severe personality disorder. On October 1979 VA neuropsychiatric examination, appellant complained of a hearing problem with high frequency hearing loss, a nervous problem, headaches, and insomnia. He described himself as a worrier. An anxiety disorder and a normal neurological examination were diagnosed. Said December 1979 rating decision denied service connection for a headache disorder on the grounds that a headache disorder had not been shown on VA examination and denied service connection for an anxiety disorder on the grounds that it was not incurred in or aggravated by service. VA clinical records reveal that in March 1987, appellant complained of nervousness and an inability to sleep. A substance abuse disorder was diagnosed. An April-May 1987 VA hospitalization report indicated that appellant was treated for alcohol and drug dependence, including cocaine. It was noted that his childhood and adolescence was marked by a lack of direction and support, and that he consequently had a deficit of social skills and coping mechanisms. Appellant disowned much of his behavior by blaming it on ringing in his ears. He was considered an inadequate individual who was dependent, manipulative, and immature. Said unappealed March 1988 rating decision denied service connection for an anxiety disorder, claimed as secondary to tinnitus, on the basis that no such relationship between an anxiety disorder and his tinnitus had been shown. The evidence received subsequent to said unappealed December 1979 and March 1988 rating decisions includes a June 2004 VA medical opinion that appellant's service-connected tinnitus more likely aggravated his headaches and anxiety disorder. Additionally, during a September 2005 Travel Board hearing, a September 2005 VA clinical record was received (with waiver of originating agency jurisdiction), wherein appellant reported that his tinnitus had worsened and caused his headaches and depression; and the assessment was severe tinnitus that caused headaches and depression. Additionally, a January 2004 VA clinical record indicated that appellant's tinnitus was described as being bothersome to the point of sleep deprivation and marriage disruption; and that his headaches were associated with stress related to his tinnitus disorder. On September 2004 VA psychiatric examination, the examiner stated that appellant would become more anxious when dealing with problems involving children, bills, or ringing in the ears. The examiner opined that appellant's anxiety appeared aggravated by ringing in the ears as well as other problems; and that his sleeplessness was caused by the anxiety. On October 2004 VA neurologic examination, the examiner opined that it was as likely as not that appellant's anxiety contributed to his tension-type headaches, but that the degree of aggravation of the subjective headaches was not quantifiable. Said VA medical opinions are evidence not previously submitted to agency decisionmakers, clearly relate to an unestablished fact necessary to substantiate the claims, namely whether appellant has headache and anxiety disorders that are related to the service-connected bilateral tinnitus, and, in the Board's opinion are neither cumulative nor redundant of the evidence previously of record. With respect to the evidence of record at the time of the unappealed December 1979 rating decision, the denial of the claim for service connection for headaches on a direct-incurrence basis was based on the fact that there was no clinical evidence of headaches on VA examination. However, the evidence received subsequent to that rating determination includes clinical evidence of headaches, and established that appellant's headache and anxiety disorders are related to the service- connected bilateral tinnitus. Thus, the Board concludes that the subsequently-received evidence constitutes "new and material" evidence. Accordingly, since evidence received subsequent to the unappealed December 1979 rating decision, which denied service connection for headache and anxiety disorders on a direct incurrence basis, and the unappealed March 1988 rating decision, which denied service connection for an anxiety disorder, claimed as secondary to tinnitus, is new and material, the claims are reopened. 38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.302(a), 20.1103. Said VA medical opinions that relate appellant's headache and anxiety disorders to the service-connected tinnitus and relate a sleep disorder to the anxiety disorder are unrebutted by any specific competent clinical evidence or other medical opinion of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002). See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With resolution of reasonable doubt in the appellant's favor, it is the Board's opinion that his headache and sleep disorders were caused by the service-connected bilateral tinnitus and the anxiety disorder was chronically aggravated by the tinnitus. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2004); Allen, supra. ORDER New and material evidence having been submitted, the claim for service connection for a headache disorder on a direct- incurrence basis is reopened. Service connection for a headache disorder on a direct incurrence basis only is denied. Service connection for a headache disorder as secondary to bilateral tinnitus is allowed on the merits. New and material evidence having been submitted, the claim for service connection for an anxiety disorder is reopened. Secondary service connection for an anxiety disorder, to the extent it was aggravated by bilateral tinnitus, is allowed on the merits. Service connection for a sleep disorder as secondary to bilateral tinnitus is granted. REMAND With respect to the appellate issue involving service connection for hypertension, to include as secondary to bilateral tinnitus, additional procedural and evidentiary development appears indicated for the following reasons. First, although an April 2003 VCAA letter addressed appellant's claim involving service connection for hypertension as secondary to bilateral tinnitus, it does not appear from the record that the RO provided appellant notice of the information and evidence necessary to substantiate that service connection claim for hypertension on a direct- incurrence basis, in accordance with the VCAA and Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, although appellant's available post-service medical records include elevated blood pressure readings (See October 2004 VA examination report), it does not appear from the record that he was afforded a VA examination to determine whether hypertension is in fact currently manifested, and, if so, its etiology. Accordingly, the case is REMANDED for the following: 1. With respect to the claim for service connection for hypertension, on a direct-incurrence basis, the RO should provide appellant appropriate VCAA notice and ensure that all VCAA notice obligations have been satisfied in accordance with applicable statutory and regulatory provisions and any other applicable legal precedent. This VCAA notice should include informing him of the information and evidence necessary to substantiate this claim, notice of which evidence, if any, the claimant is expected to obtain and submit, and which evidence will be retrieved by VA, as well as notice that he should provide any evidence in his possession that pertains to this claim. 2. With respect to the claim for service connection for hypertension, to include as secondary to bilateral tinnitus, the RO should arrange appropriate VA examination to determine whether or not the veteran has hypertension, with a medical opinion as to its etiology. The examiner should review the entire claims folder, examine the appellant, and render a medical opinion as to whether it is at least as likely as not (i.e., is there at least a 50 percent probability) as to the following: (a) Is any currently manifested hypertension causally or etiologically related to service, or to a service-connected disability (particularly the service-connected tinnitus), to include whether any currently manifested hypertension has been chronically aggravated by any service-connected disability (particularly the service-connected tinnitus)? See 38 C.F.R. § 3.310(a); Allen, supra. All indicated tests and studies should be accomplished. The examination report should contain medical history and clinical findings, and a rationale for all medical conclusions. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon in the report. If there is no relationship between the claimed hypertension and service or any service-connected disability, that should also be specifically stated in the report. 3. The RO should consider all additional evidence and readjudicate this issue on appeal. If the benefit sought is not granted, a supplemental statement of the case should be provided, and appellant should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board for further appellate consideration, to the extent such action is in order. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs