Citation Nr: 0809992 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 06-00 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for essential hypertension, to include as secondary to type II diabetes mellitus. 2. Entitlement to a compensable rating for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from August 1965 to July 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of August 2005 by the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO). The veteran submitted additional evidence in the form of private medical records following certification of the veteran's appeal to this Board in November 2007. The veteran waived regional office consideration of this additional evidence in a letter dated February 2008. This evidence has been associated with the claims folder. As the case is being remanded, the RO will also have an opportunity to review this evidence. The Board notes that the veteran raised a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities in the February 2008 letter. The Board refers this issue to the RO for any appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND Essential Hypertension In this case, the RO denied the veteran's claim of entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus with peripheral neuropathy in a rating decision dated May 2003. The veteran was notified of this decision in a letter dated May 17, 2003 and did not appeal. Thus, the decision became final. The veteran submitted a statement to VA in November 2004 in which he sought to reopen his claim of service connection for hypertension, to include as secondary to type II diabetes mellitus. The RO denied this claim in a rating decision dated August 2005 after determining that the claim was reopened due to the receipt of new and material evidence. Since the claim had been previously denied in May 2003, it was properly characterized as a claim to reopen. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). With claims to reopen filed on or after August 29, 2001, such as this one, "new" evidence is defined as evidence not previously submitted to agency decision-makers and "material" evidence as evidence, that by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (2007). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial and must raise a reasonable probability of substantiating the claim. Id. The evidence received subsequent to the May 2003 decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, the Board must still determine de novo whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board notes that the veteran was afforded a VA Compensation and Pension (C&P) Examination in May 2005. The examiner diagnosed the veteran as having essential hypertension which was "not due to service connected diabetes mellitus." However, the examiner failed to address the issue of whether the veteran's hypertension was the result of or aggravated by his service-connected type II diabetes mellitus. In this case, additional notice is required pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). In Kent v. Nicholson, 20 Vet. App. 1 (2006), Court established significant new requirements with respect to the content of the duty-to-inform notice which must be provided to a veteran who is petitioning to reopen a claim. The Court held that VA must notify the veteran of the evidence and information that is necessary to reopen the claim and VA must notify the veteran of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the veteran. In addition, the Court held that the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The veteran was provided with a VCAA notification letter, but it did not meet the requirements set forth in Kent as it did not explain the element or elements required to establish service connection that were found insufficient in the previous denials. Therefore, a remand is required. In that regard, the Board notes that the VCAA letter provided to the appellant did not inform him that he could also submit evidence showing that hypertension was aggravated by a service-connected disability. See 38 C.F.R. § 3.310(b). While the statement of the case set forth the Section 3.310 criteria that were in effect prior to October 10, 2006, it indicated that the criteria were the new criteria. This was incorrect. Due to these errors, additional procedural development is required. Post-Traumatic Stress Disorder In this case, the veteran contends that he is entitled to a compensable disability rating for PTSD. The veteran was originally granted service connection for PTSD following the issuance of a decision by this Board in September 2004. The RO implemented the Board's decision in a rating decision dated August 2005. The RO evaluated the veteran's PTSD as a non-compensable disability, effective June 23, 1998. The Board notes that the veteran was hospitalized in December 2003 after having a cerebrovascular accident (CVA). A VA mental health treatment note dated February 2004 diagnosed the veteran as having dementia, not otherwise specified. The veteran's Global Assessment of Functioning (GAF) score at that time was 45. Similarly, a VA mental health treatment follow-up note dated May 2004 indicated that the veteran was partially disoriented in time and had cognitive capabilities and a memory which were described as "moderately handicapped." The veteran's GAF score was 48. The veteran was afforded a VA C&P examination in May 2005 in connection with the current claim. Upon mental status examination, the examiner noted that the veteran was spontaneous, alert, in contact with reality, and oriented to time, place, and person. No evidence of psychomotor retardation or agitation was noted. The examiner described the veteran's thought process as logical and coherent. No evidence of looseness of association, disorganized speech, delusions, hallucinations, phobias, panic attacks, obsessions, or suicidal ideation was noted. The veteran's GAF score was 70. The examiner diagnosed the veteran as having PTSD by record and noted: There is no clinical evidence to establish a diagnosis of cognitive disorder due to cerebrovascular accident at the present time. In the August 2005 rating decision currently on appeal in this case, the Board observes that the veteran was granted pension benefits for "status post old cerebrovascular accident." The veteran was subsequently granted service connection in October 2006 for status-post cerebrovascular accident with residual mild left hemiparesis. The RO evaluated the veteran's condition as 10 percent disabling, effective November 3, 2005. The veteran was afforded a VA C&P examination in April 2007. The examiner reviewed the veteran's claims file, including the results of the May 2005 VA C&P examination. The examiner concluded that: The veteran has clear and definite symptoms of Vascular dementia; caused by, and due to, his cerebrovascular accident of december 1, 2003. The veteran has serious memory impairment and could not provide clear and specific details of his medical and psychiatric history. He has not been on psychiatric treatment since 2004. He needs the assistance of others and his daughter manages all his affairs. He has a serious impairment for independent living. Based on the current evaluation, records and history, we consider that he is not competent to handle VA funds; and is considered in need of Aid and Attendance benefits due to his currently diagnosed Vascular Dementia; not due to his service connected PTSD condition. He is unable to describe any PTSD related symptom. The examiner noted that the examination request was to determine if the veteran is in need of aid and attendance or housebound benefits based on his mental condition. The examination was also for mental disorders other than PTSD and eating disorders and the examiner specifically stated that a psychiatric evaluation was not requested. This examination report is therefore insufficient for the purpose of evaluating the veteran's level of disability, if any, resulting from PTSD. Accordingly, another VA examination is warranted. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board also points out that where manifestations of a service-connected disability cannot be separated from the manifestations of a nonservice-connected disability, all manifestations must be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). In that regard, the Board notes that a June 2007 rating decision indicated that the veteran was in receipt of pension benefits due to vascular dementia. The veteran receives medical care through VA. VA is required to make reasonable efforts to help a veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2007). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Therefore, the RO should request all VA medical records pertaining to the veteran that are dated from February 23, 2007 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO should send a duty-to-inform notice regarding the request to reopen the claim of service connection for essential hypertension, to include as secondary to type II diabetes mellitus both as a proximate cause and as a result of aggravation. The notice letter must describe the elements necessary to establish service connection for the disability and must describe what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denials. The veteran should then be afforded an appropriate period of time to respond. 2. The RO should contact the appropriate VA medical facilities and attempt to obtain medical treatment records that are dated from February 23, 2007 to the present. The RO should also attempt to obtain any other evidence identified as relevant by the veteran during the course of the remand, provided that the veteran completes the required authorization forms. 3. After the above development is complete, the RO should also make arrangements with the appropriate VA medical facility for the veteran to have a VA psychiatric examination to ascertain the nature of all psychiatric disabilities and proper diagnoses thereof, as set forth in the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM- IV). Any psychological testing should also be conducted at that time if deemed necessary by the examiner, and the results of any testing done should be included with the findings from the VA examination. The claims folder and a copy of this remand must be made available to the examiner. The examiner should note in the examination report that the claims folder has been reviewed. The examiner is asked to assess the severity of the veteran's service- connected PTSD and identify which symptoms, if any, are attributable to the veteran's service-connected PTSD and which symptoms, if any, are attributable to the residuals of the service-connected cerebrovascular accident with residual mild left hemiparesis. The examiner is also asked to include a discussion of the functional impairments of daily life, if any, resulting from the veteran's service- connected PTSD. The examiner must provide a complete rationale for any stated opinion. The examiner is also asked to indicate whether the veteran has vascular dementia. If so, the examiner is asked to express an opinion as to whether the veteran's vascular dementia is at least as likely as not (i.e., 50 percent or greater possibility) proximately due to or the result of, or aggravated by, a service- connected disability, to include the veteran's PTSD or cerebrovascular accident with residual mild left hemiparesis. The examiner must provide a complete rationale for any stated opinion. 4. Thereafter, the RO should readjudicate the veteran's claims. If 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 and applicable laws and regulations, to include 38 C.F.R. § 3.310(a) and (b) (2007), considered pertinent to the issues currently on appeal. An appropriate period of time should be allowed for response. The veteran 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). 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).