Citation Nr: 0813660 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 02-06 641 ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied service connection claim for hypertension. 2. Entitlement to an increased evaluation for bilateral hearing loss, currently rated as 20 percent disabling. 3. Entitlement to an increased evaluation for a right knee disorder, currently rated as 10 percent disabling. 4. Entitlement to an increased evaluation for a left knee disorder, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Associate Counsel INTRODUCTION The record indicates that the veteran had active service from March 1954 to August 1967, and from November 1967 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in March 2001 of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issues of increased rating for hearing and knee disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied service connection for hypertension in an unappealed October 1996 rating decision. 2. In August 1999, the veteran filed a claim to reopen his service connection claim for hypertension. 3. In the March 2001 rating decision on appeal, the RO denied the veteran's claim to reopen his service connection claim for hypertension. 4. VA has not received new and material evidence that would warrant a reopening of the veteran's service connection claim for hypertension. CONCLUSIONS OF LAW 1. An October 1996 rating decision that denied the veteran's service connection claim for hypertension is final. 38 U.S.C.A. § 7105 (2002); 38 C.F.R. § 20.200 (2007). 2. New and material evidence not been submitted to reopen the claim of service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (as in effect prior to August 29, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is attempting to reopen his previously denied service connection claim for hypertension. In the interest of clarity, the Board will initially discuss whether this claim has been properly developed for appellate purposes. The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the veteran has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA satisfied VCAA notification requirements here in a letter from VA dated in June 2007. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. VA informed the veteran of the elements that comprise his claim and of the evidence needed to substantiate the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and Kent v. Nicholson, 20 Vet. App 1 (2006). VA requested from the veteran relevant evidence, or information regarding evidence which VA should obtain (the Board also finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claim). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (veteran should be notified that he should submit any pertinent evidence in his possession). And VA advised the veteran of the respective duties of the VA and of the veteran in obtaining evidence needed to substantiate his claim. The Board notes a deficiency with VCAA notification, however. VA provided notification to the veteran after the initial adjudication of his claim in March 2001. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). Nevertheless, the Board finds that any presumed prejudice incurred by the veteran is rebutted by the record, and that proceeding with a final decision is appropriate here. See Sanders v. Nicholson, 487 F.3d 881 (2007). See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. As will be noted below, the veteran's claim to reopen will be denied. As such, the veteran will not be negatively affected by the untimely notice here. In sum, the Board finds that VA satisfied VCAA notification requirements in this matter. With regard to VA's duty to assist, the VCAA requires that VA make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate a claim for benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. The RO obtained medical records relevant to the appeal. VA afforded the veteran the opportunity to appear before hearings to voice his contentions. And the veteran underwent VA compensation evaluation for his hypertension in March 2000, even though that examiner did not render a nexus opinion as to whether the veteran's service relates to his hypertension. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341-44 (Fed. Cir. 2003) (upholding validity of 3.159(c)(4)(C)(iii) and finding that, "without the introduction of new and material evidence, VA is not required to provide a medical examination or opinion"). In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the veteran in this appeal. Therefore, the veteran has not been prejudiced as a result of the Board deciding his claim here. II. The Claim to Reopen the Claim for Service Connection The veteran originally claimed service connection for hypertension in July 1996. In an unappealed October 1996 rating decision, the RO denied the veteran's claim. This decision became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2007). In August 1999, the veteran attempted to reopen his service connection claim for hypertension. In March 2001, the RO denied this claim. In April 2001, the veteran filed a notice of disagreement against that decision. In a March 2002 Statement of the Case, the RO affirmed its denial. In an April 2002 statement, the veteran appealed this denial, and argued that service connection was warranted in this matter. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2006). In January 2008, moreover, the veteran's representative requested that the Board consider whether the veteran's hypertension relates to the veteran's service- connected post-traumatic stress disorder (PTSD). See 38 C.F.R. § 3.310 (2007). Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2006). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Where a claim has been finally decided, VA, before addressing that claim anew, must first determine whether new and material evidence has been submitted to reopen that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. If new and material evidence is presented or secured with respect to a final decision, the Secretary shall reopen and review the former disposition of that claim. See 38 U.S.C.A. § 5108. As such, to address the merits of the veteran's underlying service connection claim here, the Board must first decide whether VA has obtained new and material evidence since the final October 1996 rating decision which denied the veteran's service connection claim for hypertension. The requirement of submitting new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal regardless of the RO's determination. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). When a claim to reopen is presented, a two-step analysis is performed. The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C.A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). Under the version of 38 C.F.R. § 3.156(a) applicable to this case, new and material evidence is defined as evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in conjunction with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board acknowledges that there has been a regulatory change in the definition of new and material evidence that is applicable to all claims filed on or after August 29, 2001. As the veteran's claim in this case was filed prior to August 29, 2001, the earlier version of the definition of new and material evidence remains applicable in this case. Again, VA denied the veteran's original service connection claim in a final October 1996 rating decision. To determine whether new and material evidence has been submitted since then, the Board must compare the evidence of record at the time of that decision with the evidence of record received since that decision. Evidence of Record Considered in the October 1996 Rating Decision The relevant evidence in October 1996 consisted of the veteran's statements, service medical records that do not indicate hypertension or any heart problems, a March 1974 discharge report of medical examination that found the veteran's heart and vascular systems to be normal, and which found blood pressure of 104/80, a May 1980 VA examination report noting blood pressure of 110/90 but not noting hypertension, a November 1991 VA examination report noting hypertension, 1994-1995 Army hospital treatment records noting hypertension, and a March 1994 private medical record noting hypertension with an onset of "10 years ago." In sum, the evidence in October 1996 indicated that the veteran had hypertension, but that its onset was years after his June 1974 discharge from active service. As such, VA denied the veteran's claim. Again, this decision became final. It is therefore not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. Evidence Submitted Since the October 1996 Rating Decision The evidence that must be considered in determining whether there is a basis for reopening the veteran's claim for service connection is evidence that has been added to the record since the final October 1996 rating decision. Since that decision, the RO has received additional statements from the veteran; additional Army hospital treatment records such as a January 1983 treatment record noting "possible" hypertension, an October 1983 record noting a self-reported hypertension diagnosis since December 1982 (rendered in a civil service examination), a January 1984 treatment record indicating "mild" hypertension and noting a 5-day blood pressure check, a December 1984 treatment record indicating blood pressure of 150/100, and noting a planned 5-day blood pressure check, a January 1985 record indicating prescription of hypertension medication, and a December 1993 record indicating a "7 to 8 year history" with hypertension; VA treatment records dated since 2000 reflecting treatment for hypertension; a private treatment record dated in March 2000 indicating onset of hypertension 12 years earlier; another March 2000 private medical record indicating hypertension "x 10 yrs - well controlled[;]" a March 2000 VA compensation examination report noting hypertension, and noting that the veteran indicated that he had had hypertension for 10-12 years; and a transcript of an April 2004 RO personal hearing, in which the veteran stated that he had been diagnosed with hypertension while in service. This is certainly new evidence in the claims file. It has been included in the claims file since the October 1996 final rating decision. But the Board finds none of this evidence to be material evidence. None of the new evidence bears directly and substantially upon the specific issue of service connection here. None of the new evidence shows that the veteran had hypertension during service. See 38 C.F.R. § 3.303. None of the new evidence shows that the veteran manifested hypertension within one year of service. See 38 C.F.R. §§ 3.307, 3.309 (2007) (hypertension will be presumed incurred in service if it manifests within one year of discharge from service). And none of the new evidence shows that the veteran's current hypertension relates to his current PTSD. See Roebuck v. Nicholson, 20 Vet. App. 207 (2006) (claim alleging separate theories of causation constitutes one claim for adjudication purposes). In sum, the new evidence regarding the veteran's hypertension is redundant with the evidence that was of record in October 1996. The new evidence merely reiterates what was known then - that the veteran has hypertension, and that he had been diagnosed with the disorder sometime after discharge from service. Indeed, rather than indicating service connection, the new evidence reinforces what the record indicated in October 1996 - that the onset of the veteran's hypertension was in the early 1980s, several years after his discharge from service in 1974. Hence, the Board finds that the new evidence alone, or in conjunction with evidence of record in 1996, is not so significant that it must be considered in order to fairly decide the merits of the veteran's service connection claim. See 38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001). Accordingly, the claim to reopen the service connection claim for hypertension is denied. The evidence of record preponderates against the veteran's claim to reopen his service connection claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that it has closely reviewed and considered the veteran's statements. While his statements may be viewed as evidence, the Board must also note that laypersons without medical expertise or training are not competent to offer medical evidence on matters involving diagnosis and etiology. Therefore, his lay statements alone are insufficient to prove his claim. Ultimately, a lay statement, however sincerely communicated, cannot form a factual basis for granting a claim requiring medical determinations. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). ORDER The application to reopen the claim of entitlement to service connection for hypertension is denied. REMAND The veteran has claimed increased ratings for service- connected knee and hearing disorders since an April 2001 notice of disagreement contesting the initial evaluations assigned for these disorders in the March 2001 rating decision on appeal. In June 2007, the RO submitted to the veteran a VCAA letter pertaining to the veteran's increased rating claims here. This letter did not address the specific criteria under the diagnostic codes for hearing and knee disorders. See 38 C.F.R. §§ 4.71a, 4.85, 4.86 (2007). In January 2008, the U.S. Court of Appeals for Veterans Claims (Court) issued its decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this decision, the Court addressed VA claims for increased compensation. In relevant part, the Court stated in Vazquez-Flores that, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Id. Accordingly, the case is REMANDED for the following action: 1. The RO should submit to the veteran a new VCAA letter addressing the veteran's increased rating claims for hearing loss and knee disorders. See Vazquez-Flores, supra. 2. In the letter, the RO should advise the veteran that he may submit evidence showing any effects of worsening, or increase in severity, upon his employment and daily life. 3. In the letter, the RO should provide specific notice of the criteria in the diagnostic codes at issue here - Diagnostic Codes 5003, 5010, 5256 through 5263, and 6100. See 38 C.F.R. §§ 4.71a, 4.85, 4.86 (2007). 4. The RO should then readjudicate the issues on appeal. If a determination remains unfavorable to the veteran, the RO should issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). These claims 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). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs