Citation Nr: 0811531 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-41 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen the previously denied claim for service connection for hypertension. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for migraines 4. Entitlement to service connection for tinnitus. 5. Entitlement to service connection for a right knee disability secondary to the service-connected left knee disability. 6. Entitlement to service connection for degenerative disc disease of the thoracic spine, including as secondary to the service-connected lower back disability. 7. Entitlement to service connection for anxiety attacks, as secondary to chronic pain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from July 1988 to August 2000. Service personnel records show he then served in the National Guard from September 2000 to September 2001. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in April 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia in which it was determined that new and material evidence had not been submitted to reopen the previously denied claim for hypertension, and in which service connection for tinnitus, anxiety attacks due to chronic pain, a right knee condition, migraines, and degenerative disc disease of the thoracic spine was denied. The veteran testified before the undersigned Veterans Law Judge in January 2008. A transcript of the hearing is associated with the claims file. In March 2008, the Board received additional medical evidence from the veteran with waiver of review by the agency of original jurisdiction. The issues of entitlement to service connection for hypertension, migraines, tinnitus, a right knee disability secondary to the service-connected left knee disability, degenerative disc disease of the thoracic spine, including as secondary to the service-connected lower back disability, and anxiety attacks, as secondary to chronic pain addressed in the REMAND portion of the decision below REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A March 2001 rating decision denied service connection for hypertension. The appellant did not appeal this decision and it is now final. 2. Evidence received since the March 2001 rating decision relates to an unestablished fact necessary to substantiate the claim, i.e., evidence that the veteran is now diagnosed with hypertension. This evidence raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received since the March 2001 rating decision is new and material and the claim for service connection for hypertension is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the veteran. I. New and Material In a March 2001 rating decision, the RO denied service connection for hypertension. The rationale given for the decision was that although the veteran had been found to have occasional episodes of elevated blood pressure during active service, he did not have a current diagnosis of high blood pressure. Rather, the examiner diagnosed the veteran as normotensive. However, the examiner noted that the veteran continued to have episodes of elevated blood pressure in mildly stressful situations. The RO provided notice of this decision to the appellant in March 2001. The appellant did not appeal this denial. It therefore became final. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The regulations define "new" evidence as existing evidence not previously submitted to agency decisionmakers. "Material" evidence is defined as existing 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(a). 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. Id. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Evidence received since the March 2001 denial of service connection for hypertension includes additional service medical records received in 2004 and medical treatment records showing that the veteran is now diagnosed with hypertension. The receipt of additional service medical records provides a basis to reopen the claim. See 3.156(c). In addition, the diagnosis of hypertension is new in that it was not previously of record. This evidence presents a current diagnosis of hypertension. Thus, the newly submitted medical evidence presents a reasonable possibility that the veteran's currently manifested hypertension is the result of, or had its onset during, the veteran's active service. It is therefore material. Accordingly, reopening the claim for service connection for hypertension is warranted. ORDER New and material evidence having been received, the previously denied claim for service connection for hypertension is reopened. To that extent only, the claim is granted. REMAND The veteran seeks entitlement to service connection for hypertension, migraines, tinnitus, a right knee disability secondary to the service-connected left knee disability, degenerative disc disease of the thoracic spine, including as secondary to the service-connected lower back disability, and for anxiety attacks, as secondary to chronic pain. The medical evidence reflects the veteran is diagnosed with or has been observed to manifest symptoms of his claimed disabilities. He was diagnosed with hypertension, neurological deficit in the right lower extremity, and degenerative disc disease of the thoracic spine. He has been treated for high blood pressure, headaches, right knee and right lower leg complaints, and thoracic spine complaints. The veteran and his spouse have offered their statements and testimony before the undersigned Veterans Law Judge that the veteran experienced ringing in his ears, headaches, and anxiety while still on active service. The veteran testified that he worked as a radio operator while on active service and was a qualified parachutist. Hence, he jumped with the additional radio equipment, which added strain to his knees, back and other joints. The veteran's separation documents confirm that he held the military occupational specialty (MOS) of 31C2P, or single channel radio operator, and that he was awarded the parachutists badge. The Board finds the veteran's testimony to be credible. Private medical records reflect that the veteran has been diagnosed with a systemic spinal condition throughout his entire spine. He was initially diagnosed with Chiari malformation and syringomyelia, but later clinical studies have been interpreted to reveal degenerative disks in the cervical, thoracic, and lumbar spine. Internet research reveals that Chiari malformation and syringomyelia are conditions that may have a congenital origin, but that they can also be the result of isolated injury to the spine or the result of injury to the spine independent of the underlying condition. The claim has not been developed for either aggravation of a pre-existing condition or aggravation of a nonservice- connected condition by a service-connected condition. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The claim has also not been developed as one involving secondary service connection for the right knee and thoracic spine, which the veteran explained in his hearing he was claiming as secondary to his service connected left knee and lumbosacral spine disabilities, respectively. Additional service medical records were received in 2004. The veteran reported in his hearing that he had been terminated from work due to his physical disabilities. VA examination must therefore be accorded in this case to determine the nature, extent, and etiology of the hypertension, migraines, tinnitus, right knee disability, degenerative disc disease of the thoracic spine, and for anxiety attacks. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Ensure that all identified VA and non- VA post-service treatment records identified by the veteran have been obtained. 2. Ask the veteran to identify all employment from which he was terminated due to disability. Obtain the documentation that resulted in his termination and any supporting records. Obtain release of private information from the veteran where appropriate. Document negative results and inform the veteran so that he may make attempts to obtain the records. 3. Schedule the veteran for examinations by the appropriate medical professionals to determine the nature, extent, and etiology of his hypertension, migraines, tinnitus, right knee disability, degenerative disc disease of the thoracic spine, and anxiety attacks. All indicated tests and studies should be performed. The claims folder, including all newly obtained evidence, and a copy of this remand, must be sent to the examiners for review. The examiners are to provide the following opinions: a) Whether it is at least as likely as not that any diagnosed hypertension, migraines, tinnitus, and anxiety had its onset during or is in any way the result of the veteran's active service or any incident therein; b) whether it is at least as likely as not that any diagnosed right knee disability is the result of the service-connected left knee disability or, in the alternative, had its onset during active service or, is otherwise the result of active service or any incident therein; c) whether it is as likely as not that any diagnosed degenerative disc disease of the thoracic spine is the result of the service-connected lower back disability or, in the alternative, had its onset during active service or is otherwise the result of active service or any incident therein, including aggravation of a pre-existing systemic condition of the spine. d) whether it is as likely as not that any diagnosed anxiety attacks are the result of any of the veteran's service-connected disabilities, to include pain, or, in the alternative, had their onset during active service or are otherwise the result of active service or any incident therein. The examiners must provide a complete rationale for any opinions expressed. 4. After undertaking any other development deemed essential in addition to that specified above, readjudicate the veteran's claims for service connection for hypertension, migraines, tinnitus, a right knee disability secondary to the service-connected left knee disability, degenerative disc disease of the thoracic spine, including as secondary to the service-connected lower back disability, and for anxiety attacks, as secondary to chronic pain, with application of all appropriate laws and regulations, including Wagner and Allen, supra, and consideration of any additional information obtained as a result of this remand. If any decision remains adverse to the veteran, furnish him with an SSOC and afford a reasonable period of time within which to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is so informed. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that failure to appear for any scheduled VA examinations without good cause could result in the denial of his claims. 38 C.F.R. § 3.655 (2006). See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Board intimates no opinion as to the ultimate outcome of this case. 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs