Citation Nr: 1014074 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 07-03 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension, to include as secondary to service-connected Non-Hodgkins lymphoma. 2. Entitlement to service connection for a chronic respiratory disorder, to include chronic obstructive pulmonary disease. 3. Entitlement to an increased (compensable) evaluation for Non-Hodgkins lymphoma. 4. Entitlement to an initial compensable evaluation for decreased salivary secretions resulting in "dry mouth." 5. Entitlement to an initial compensable evaluation for folliculitis-like skin lesions. 6. Entitlement to special monthly compensation based on statutory housebound status. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to January 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In a rating decision of August 1986, the RO denied entitlement to service connection for hypertension. The Veteran voiced no disagreement with that decision, which has now become final. Since the time of the August 1986 rating decision, the Veteran has submitted additional evidence in an attempt to reopen his claim. The RO found such evidence both new and material, but continued its denial of service connection for hypertension. At the time of the aforementioned rating decision in March 2005, the RO discontinued the Veteran's previously- assigned 100 percent schedular evaluation for Non-Hodgkins lymphoma, assigning a noncompensable evaluation effective from June 1, 2005. In May 2005, the Veteran voiced his disagreement with that reduction in benefits, but clearly stated that he was not, in fact, seeking restoration of the previously-assigned 100 percent schedular evaluation. Nor was the issue of restoration raised at the time of the filing of the Veteran's Substantive Appeal in January 2007. Under the circumstances, the Board will not address the issue of restoration of a 100 percent schedular evaluation for service-connected Non-Hodgkins lymphoma as part of its decision. The issues of service connection for a chronic respiratory disorder (to include chronic obstructive pulmonary disease) and service connection for hypertension on a de novo basis, as well as increased evaluations for service-connected Non- Hodgkins lymphoma, decreased salivary secretions resulting in a "dry mouth," and folliculitis-like skin lesions, in addition to special monthly compensation based on statutory housebound status is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. In a rating decision of August 1986, the RO denied entitlement to service connection for hypertension. 2. Evidence submitted since the time of the August 1986 decision denying entitlement to service connection for hypertension is neither cumulative nor redundant, and of sufficient significance that it raises a reasonable possibility of substantiating the Veteran's current claim. CONCLUSIONS OF LAW 1. The decision of the RO in August 1986 denying the Veteran's claim for service connection for hypertension is final. 38 U.S.C.A. §§ 1110, 1131, 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). 2. Evidence received since the RO denied entitlement to service connection for hypertension in August 1986 is both new and material, and sufficient to reopen the Veteran's claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes: his multiple contentions, as well as service treatment records, and both VA and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran in this case seeks service connection for hypertension. In pertinent part, it is contended that the Veteran's hypertension had its origin during his period of active military service. In the alternative, it is contended that the Veteran's hypertension is in some way proximately due to, the result of, or aggravated by his service-connected Non-Hodgkins lymphoma, or treatment therefore. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (2009). Establishing service connection generally requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an inservice incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed inservice disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease, including hypertension, becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). Notwithstanding the aforementioned, once entitlement to service connection for a given disorder has been denied by a decision of the RO, that decision, absent disagreement by the Veteran within a period of one year, is final. 38 U.S.C.A. § 7105 (West 2002 and Supp. 2009); 38 C.F.R. § 20.1103 (2009). Where a claim for entitlement to service connection has been previously denied, and that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2009). Evidence is considered to be "new" if it was not previously submitted to agency decisionmakers. Evidence is "material" if, by itself, or when considered with previous evidence of record, it 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. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). In addition, new evidence may be found to be material if it provides a "more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board of Veterans' Appeals to alter its decision." See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether new and material evidence has been submitted, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and Material Evidence As regards the Veteran's claim for service connection for hypertension, the Board notes that, in Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit held that the "factual basis" of a claim for service connection is the Veteran's disease or injury, rather than the symptoms of that disease or injury. Moreover, a properly diagnosed disease or injury cannot be considered the same factual basis as a distinctly diagnosed disease or injury. As a consequence, for purposes of 38 U.S.C.A. § 7104(b), claims which are based upon distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims. This is to say that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently, because they rest on different factual bases. In the case at hand, at the time of the prior August 1986 decision, the RO denied entitlement to service connection for hypertension. The Veteran's current claim and accompanying evidence reflects that very same disability. Inasmuch as the Veteran's current claim is based on the very same disability as his previous claim, it must be considered on a "new and material" basis. See Boggs , supra. In the present case, at the time of the aforementioned August 1986 rating decision, it was noted that, at the time of the Veteran's service entrance examination in August 1964, the Veteran gave a history of one episode of hypertension in 1962, prior to service. The Veteran's blood pressure at the time of service entrance was 140/86. Further noted was that there was no evidence of any treatment or diagnosis of a cardiovascular condition during the Veteran's period of active service. At the time of a retirement physical examination, the Veteran's blood pressure was 128/86. Moreover, a VA general medical examination conducted subsequent to service noted a history of borderline hypertension, with blood pressures of 126/94, 122/84, 130/90, 128/22, and 126/90. Based on such findings, it was determined that chronic essential hypertension was not shown during the Veteran's period of active military service, or to a compensable degree during the first year following service discharge. Accordingly, service connection for hypertension was denied. That determination was adequately supported by and consistent with the evidence then of record, and is final. Evidence submitted since the time of the RO's August 1986 decision is both "new" and "material" as to the issue of service connection for hypertension. More specifically, since the time of the August 1986 rating decision, the Veteran has received both a confirmed diagnosis of and treatment for hypertension. Such evidence, at a minimum, provides a "more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability," and, accordingly is sufficient to reopen the Veteran's previously-denied claim. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must (1) inform the Veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the Veteran about the information and evidence that VA will seek to provide; and (3) inform the Veteran about the information and evidence he is expected to provide. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. However, given the determination that new and material evidence has, in fact, been submitted sufficient to reopen the Veteran's previously-denied claim, any further discussion of the requirements of the VCAA is unnecessary. ORDER New and material evidence having been submitted to reopen a claim of entitlement to service connection for hypertension, the benefit sought on appeal as to that matter is granted. REMAND Having determined that new and material evidence has been submitted sufficient to reopen the Veteran's previously- denied claim for service connection for hypertension, the Board must now proceed to a de novo review of all pertinent evidence of record. That evidence, however, raises some question as to the exact nature and etiology of the Veteran's current hypertension. In that regard, at the time of a service entrance examination in August 1964, there was noted a questionable episode of hypertension in 1962. However, following reevaluation of the Veteran in December of that same year, it was noted that a letter from the Veteran's private physician showed only one episode of hypertension in 1962. Physical examination of the Veteran revealed a sitting blood pressure of 140/86, and the Veteran was considered qualified for Airborne training. At the time of a subsequent service medical examination in August 1977, the Veteran gave a history of high or low blood pressure. However, a physical examination of the Veteran conducted at that time showed a sitting blood pressure of 116/80, and no pertinent diagnosis was noted. On service medical examination in May 1982, the Veteran gave a history of high blood pressure in 1964, but with no need for medication. A physical examination of the Veteran conducted at that time showed a sitting blood pressure of 108/74, and no pertinent diagnosis was noted. At the time of the Veteran's retirement physical examination in January 1986, he denied any history of high or low blood pressure. A physical examination of the Veteran's heart and vascular system conducted at that time was within normal limits, and the Veteran's blood pressure was 128/86 in the sitting position. Once again, at the time of service separation, no pertinent diagnosis was noted. Significantly, during the course of a VA general medical examination in May 1986, the Veteran indicated that he had first been diagnosed with hypertension as far back as 1965, though at that time, he was told that it was "rather borderline," and never placed on any treatment. According to the Veteran, since that time, he had undergone many physical examinations, some of which showed elevated blood pressure, and some of which did not. Reportedly, the Veteran had never received any treatment for hypertension. Nor had he experienced problems with chest pain, ankle edema, or shortness of breath. On physical examination, measurements obtained in the sitting, reclining, and standing positions yielded blood pressure readings of 126/94, 122/84, and 130/90 on the right arm, and 128/82, and 126/90 on the left arm. Pulses in the sitting, reclining, and standing positions were 78, 80, and 84, respectively. The pertinent diagnosis noted was "history consistent with borderline hypertension." The Board notes that, during the course of a private medical examination in October 1994, the Veteran gave a history of elevated blood pressure, indicating that, on one particularly stressful occasion when his wife, a nurse, had taken his blood pressure, it was 160/90. Moreover, during the course of a subsequent private medical examination in April 2003, the Veteran received a confirmed diagnosis of hypertension which was reportedly "controlled with medication." The Veteran has in part argued that his current hypertension is in some way causally related to service-connected Non- Hodgkins lymphoma, or treatment therefore. While it is true that various VA examiners have offered their opinion that the Veteran's hypertension is not proximately due to or the result of his Non-Hodgkins lymphoma, no opinion has yet been offered as to whether the Veteran's hypertension has, in fact, been aggravated by that same Non-Hodgkins lymphoma, or treatment therefore. Such an opinion is necessary prior to a final adjudication of the Veteran's current claim for service connection for hypertension. As regards the Veteran's claim for service connection for a chronic respiratory disorder (to include chronic obstructive pulmonary disease), it is true that, during the Veteran's period of active military service, he received neither a diagnosis of nor treatment for a chronic respiratory disability. However, during the course of a VA medical examination in February 2005, there was noted a March 2003 report of a CT scan reportedly showing evidence of a mild upper lobe, predominantly pulmonary, emphysema. While various VA examiners have offered their opinion that the Veteran's current respiratory pathology is not proximately due to or the result of his service-connected Non-Hodgkins lymphoma (or treatment therefore), no opinion has yet been offered as to whether that lymphoma (or treatment therefore) has in any way aggravated the Veteran's currently-existing respiratory disability. Such an opinion is necessary prior to a final adjudication of the Veteran's claim for service connection for a chronic respiratory disorder. Finally, as regards the Veteran's claims for increased evaluations for service-connected Non-Hodgkins lymphoma, decreased salivary secretions resulting in a "dry mouth," and folliculitis-like skin lesions, the Board notes that it appears as though the Veteran was issued VCAA-complying notice with respect to the Non-Hodgkin's lymphoma matter prior to the grant of service connection. See July 2003 letter; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). However, given the procedural development presented in this case, wherein the Veteran's initial rating for Non- Hodgkin's lymphoma was reduced from 100 percent to zero percent, but the Veteran thereafter only sought entitlement to an increased rating for his disease, as well as the disabilities that were service-connected as secondary to the Veteran's Non-Hodgkin's lymphoma, the Board finds that the Veteran should be issued VCAA-complying notice with regard to the above-referenced increased rating claims. It is also noted that the Veteran has not been provided such notice with respect to the issue of special monthly compensation based on statutory housebound status. Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should review the Veteran's claims file, and ensure that the Veteran and his representative are sent a corrected VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) which advises the Veteran and his representative of the evidence and information necessary to prevail on his claims for service connection for hypertension and a chronic respiratory disorder (included chronic obstructive pulmonary disease), as well as his claims for increased evaluations, and his claim for special monthly compensation based on statutory housebound status. A copy of the letter providing the Veteran with such notice should be made a part of his claims folder. 2. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to March 2009, the date of the most recent VA evidence of record, should then be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 3. The Veteran's entire claims folder should then be furnished to an appropriate specialist or specialists for review, in an attempt to more accurately determine the exact nature and etiology of his current hypertension and chronic respiratory disability. Following completion of that review, the appropriate examiner or examiners should offer an opinion as to whether it is at least as likely as not the case that the Veteran's current hypertension and/or respiratory disability have in some way been aggravated by his service-connected Non-Hodgkins lymphoma, or treatment therefore. A complete rationale must be provided for any opinion offered, and all information and opinions, when obtained, must be made a part of the Veteran's claims folder. 4. The RO/AMC should then review the Veteran's claims for service connection for hypertension and a chronic respiratory disorder (including chronic obstructive pulmonary disease), as well as his claims for increased evaluations for service-connected Non-Hodgkins lymphoma, decreased salivary secretions resulting in a "dry mouth," and folliculitis-like skin lesions, in addition to his claim for special monthly compensation based on statutory housebound status. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claims for benefits since the issuance of the most recent SSOC in June 2009. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant 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. 38 U.S.C. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs