Citation Nr: 1127160	
Decision Date: 07/21/11    Archive Date: 07/29/11

DOCKET NO.  07 27-747A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an increase rating for posttraumatic stress disorder (PTSD), rated as 30 percent disabling prior to December 15, 2007.

2.  Entitlement to an increase rating for PTSD, currently rated as 50 percent disabling.

3.  Evaluation of hypertensive cardiovascular disease with diastolic dysfunction and non-obtrusive coronary artery disease associated with diabetes mellitus type II, currently rated as 30 percent disabling.

4.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension and hypotension associated with diabetes mellitus type II.

5.  Entitlement to service connection for hypertension or hypotension



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Schulman, Associate Counsel


INTRODUCTION

The Veteran had active service from September 1966 until September 1968.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas.


FINDINGS OF FACT

1.  PTSD has been productive of impaired sleep, poor family relationships, slow speech, memory deficits, and two to three panic attacks per month.

2.  Hypertensive cardiovascular disease with diastolic dysfunction and non-obtrusive coronary artery disease has been productive of workload resulting in dyspnea, fatigue, angina, dizziness, or syncope, of no less than 8 METs, and left ventricular dysfunction ejection fraction of no less than 65 percent.

3.  In an unappealed July 1991 decision, the RO denied entitlement to service connection for hypertension on a secondary basis.
 
4.  The evidence added to the record since July 1991, when viewed in context of the entire record, relates to unestablished facts necessary to substantiate a claim of entitlement based on hypertension secondary to service-connected diabetes mellitus.

5.  Hypertension, to include any increase or aggravation, is unrelated to a service-connected diabetes mellitus.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating of 50 percent prior to December 15, 2007 for PTSD have been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.130, Diagnostic Code 9411 (2010).

2.  The criteria for a disability rating in excess of 50 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.130, Diagnostic Code 9411 (2010).

3.  The criteria for a disability rating in excess of 30 percent for hypertensive cardiovascular disease with diastolic dysfunction and non obtrusive coronary artery disease have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.104, Diagnostic Code 7005 (2010).

4.  A July 1991 rating decision denying service connection for hypertension on a secondary basis is final.  New and material evidence has been received to reopen the claim to establish service connection for hypertension, and the claim is reopened.  38 U.S.C.A. §§ 5108 , 7105 (West 2002); 38 C.F.R. § 3.156 (2010).

5.  Hypertension is not proximately due to or the result of a service connected disease or injury.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2010).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See, Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

The Veteran's hypertensive cardiovascular disease-related claim arises from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Rango v. Shinseki, No. 06-2723 (Vet. App. January 26, 2009).  Therefore, no further notice is needed under VCAA with respect to this issue.

For an increased-compensation claim, such as the PTSD-related claim currently before the Board, the Court of Appeals of Veterans Claims had held that § 5103(a) required, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009).  

In claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial.  In this case, the claims to which such notice is relevant are reopened and considered de novo in the immediate decision.  Thus, to the extent that the Veteran may not have received Kent-compliant notice, any resulting error is harmless.

Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in July and October 2006 that fully addressed required notice elements and were sent prior to the initial RO decision in this matter.  The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal.  The letters also informed the Veteran of what type of information and evidence was needed to establish disability ratings and effective dates.

Based on the foregoing, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist the Veteran in the development of the claim.  To that end, VA must make reasonable efforts to assist the claimant 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 (2010).  Service records have been obtained, as have records of VA treatment.  Furthermore, the Veteran has been afforded VA examinations including those of December 2007, during which examiners were provided the Veteran's claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions based on their examinations that were consistent with the record.  The Board notes that it is "entitled to assume the competence of a VA examiner." Cox v. Nicholson, 20 Vet. App. 563, 596 (2007).  See also, Hilkert v. West, 12 Vet. App. 145, 151 (1999).  Examinations of the appellant was found to have been adequate.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See, Bernard v. Brown, 4 Vet. App. 384 (1993).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record.  The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified.  Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Ratings on Appeal

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2010).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010).
		
When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Rating for PTSD

When a claimant is awarded service connection and assigned a disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."  Hart v. Mansfield, 21 Vet. App. 505, 511 (2007).

The Veteran's claim of entitlement to higher rating for PTSD is an appeal from a January 2007 rating decision which continued the Veteran's 30 percent rating for PTSD.  In a rating decision from October 2008, the RO rated PTSD as 50 percent disabling effective December 15, 2007.  Evaluation of the claim requires that the Board consider the entire time period involved, and whether a staged ratings may be warranted.  See Fenderson, supra.; Hart, supra.  The Board has reviewed the record and finds nothing to reflect that there has been a significant change in the disability and thus a uniform rating is warranted.  With regard to the date December 15, 2007, the RO appears to have chosen this date as it is the date of a VA examination documenting a history of panic attacks two to three times a month, nightmares, avoidance, feelings of detachment or estrangement, and difficulty concentrating and sleeping.  There is no reason to believe that PTSD became substantially worse on this date, and in fact the examination report indicates that such symptoms have been chronic and persistent.  For the forgoing reasons, the Board grants a 50 percent rating prior to December 15, 2007 (effective date of claim). 

The Veteran's 50 percent rating for PTSD has been made effective prior to December 15, 2007.  The disability is evaluated under the general rating formula for mental disorders.  See 38 C.F.R. § 4.130, Diagnostic Code (Code or DC) 9411.  Under this general rating formula, the current 50 percent evaluation is provided on evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, DC 9411 (2010).

A 70 percent rating requires occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or the inability to establish and maintain effective relationships.  Id.

A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for the names of close relatives, own occupation, or own name.  Id.

In evaluating the Veteran's level of disability, the Board has considered the Veteran's Global Assessment of Functioning (GAF) scores as one component of his overall disability picture.  GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  The scale may be relevant in evaluating mental disability.  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).

GAF scores of 60 to 61 represent some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful relationships. Where scores are between 60 and 51, moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers) are present.

The Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders.  38 U.S.C. § 1155 (West 2002); see 38 U.S.C. § 501 (West 2002); 38 C.F.R. § 4.130 (2010).  By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive.  The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997).  The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV.  See 38 C.F.R. § 4.126.  If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436 (1992).

VA examination in December 2006 indicated a history of problematic substance abuse from 1991 through 2000.  The Veteran reported nightmares three to four nights a week, and occasional flashbacks triggered by noises or gasoline smells.  He reported good relationships with his two adult daughters, but a poorer relationship with his son.  The Veteran had no impairment of thought processes or communication.  He endorsed smelling napalm and blood regularly, but denied auditory and visual hallucinations.  Eye contact was good, and psychomotor activity was more or less normal.  The Veteran denied homicidal and suicidal ideations, however he did endorse thoughts of suicide when on antidepressants for more than five to six months at a time.  The Veteran was oriented to person, place, and time.  Long-term memory was reasonably good, however short-term memory was affected, and he had concentration-related problems.  Speech was variable, often a little slow and a little soft, but unremarkable to rhythm, intonation and construction.  The Veteran's GAF score was assessed as 65.

In January 2007, the Veteran was oriented to person, place and time.  His speech was slow, though otherwise normal, and psychomotor activity was within normal limits.  The Veteran's mood was neutral, affect was appropriate and though content was without delusions, obsessions and compulsions.  The Veteran denied suicidal and homicidal ideation, and memory, cognition, judgment, and insight were all intact.

In March 2007, the Veteran reported nightmares every night, and three to four suicide attempts in 1989, though he denied current suicidal and homicidal ideation.  He was alert and oriented, and presented as logical and goal-directed.  The Veteran showed no evidence of disturbance in formal thought processes and no evidence of psychosis.

Testing and assessment in April 2007 revealed the Veteran to have greater verbal than nonverbal abilities.  His working memory and processing speed was in the low to average range, suggesting that his ability to hold and process information in memory was mildly impaired.  It was discussed that the Veteran had been having short-term memory problems in recent months and his memory appeared to be mildly impaired, which may have represented the beginning of a neurodegenerative process.

A February 2007 psychotherapy note indicated that the Veteran had difficulty sleeping.  It was noted that he had hatred toward authority figures and distrust of Americans that likely contributed to his criminal behavior.  He also discussed a recent incident in which he had thoughts about wanting to kill an authority figure, however he denied any intent and the clinician indicated that the Veteran was not a danger to himself or others.

VA examination in December 2007, the Veteran reported that his relationship with his three children was good, and that he had a few friends who he saw on the weekends.  The Veteran's speech was soft and slow, his affect was flat, and his mood was depressed and dysphoric.  Thought process was unremarkable, and the Veteran endorsed homicidal and paranoid ideation, but denied hallucinations.  Panic attacks occurred two to three times a month, and memory was normal to moderately impaired.  The Veteran had difficulty falling and staying asleep, as well as difficulty concentrating.  The Veteran was highly socially reserved and did not partake in many social activities.  PTSD was described as having made the Veteran angry, violent towards others, and depressed.  Though he remained employed, he continued to have disagreements with others.  The Veteran's GAF score was 52.

After a careful review of the evidence above, the Board finds the Veteran's PTSD disability to be not more than 50 percent disabling.  As previously indicated, the current 50 percent evaluation contemplates occupational and social impairment with reduced reliability and productivity due to such symptoms as a flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, DC 9411 (2010).

In order to warrant a higher evaluation, the evidence must show occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or the inability to establish and maintain effective relationships.  Id.

In this case, the Veteran has been shown to have impaired sleep, poor family relationships, slow speech, memory deficits, and some hatred toward figures in authority.  However, the Board does not find that a rating in excess of 50 percent is appropriate here.  Specifically, there is no evidence of manifestations such as obsessional rituals, spatial disorientation, or neglect of personal appearance and hygiene.  Furthermore, while the Veteran has endorsed panic attacks, such events occur two to three times a month and do not affect his ability to function independently.  Additionally, although treatment and examination reports indicate some thoughts of suicide, these have been indicated to be associated only with the use of certain medications.  And while a single instance of homicidal ideation was endorsed, the reviewing clinician indicated that there was no intention and the Veteran presented no danger to others or himself.  Particularly informative of the Veteran's level of disability is the fact that during the period on appeal, the Veteran's lowest GAF score has been 52, indicating moderate symptoms.  While such a GAF scores is consistent with the current 50 percent rating, the Veteran's level of symptomatology does not reach the level contemplated by a 70 percent evaluation.  38 C.F.R. § 4.130, DC 9411 (2010).  Mauerhan v. Principi, 16 Vet. App. 436 (1992).

The Veteran has asserted that PTSD has been greater than 50 percent disabling.  While the Board finds him to be credible in his assertions, the evidence prepared by skilled professionals is more probative of the Veteran's level of symptomatology.

Based on the foregoing, the Board concludes that the Veteran's PTSD disability has been 50 percent disabling throughout the period on appeal.  As the preponderance of the evidence is against the claim, there is no doubt to be resolved.   38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).  

Hypertensive Cardiovascular Disease

The Veteran's claim of entitlement to a higher rating for hypertensive cardiovascular disease with diastolic dysfunction and non-obtrusive coronary artery disease associated with diabetes mellitus type II is an appeal from the initial assignment of a disability rating in January 2007.  When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found.  Such separate disability ratings are known as staged ratings.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned).  In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings."  Hart v. Mansfield, 21 Vet. App. 505, 511 (2007).  Here, as the evidence below demonstrates, the disability has not significantly changed and a uniform evaluation is warranted.

In the January 2007 rating decision on appeal, the Veteran was awarded service connection for hypertensive cardiovascular disease and granted an evaluation of 10 percent, effective May 15, 2006.  In a rating decision of August 2007, an evaluation of 30 percent was assigned, effective May 15, 2006.  The Veteran's hypertensive cardiovascular disease is rated under 38 C.F.R. § 4.104, DC 7005 (2010).  Under this Code, the current 30 percent evaluation is warranted for coronary artery disease with a workload of greater than 5 metabolic equivalent tasks (METs) but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray.  The next higher rating of 60 percent requires more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  Finally, a 100 percent rating is warranted for coronary artery disease resulting in chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, DC 7005 (2010).

In May 2006, the Veteran reported chest pain and dyspnea on exertion.  He had been in a normal state of health until three days prior when he had an episode of mild sterna chest pain during exertion.  An electrocardiograph (EKG) revealed no ischemic changes.  There was no evidence of acute cardiopulmonary disease, and the pulmonary vasculature was normal and without evidence of pleural fluid.  The cardiac silhouette and mediastinal structures were normal.  Transthoracic echocardiography (TTE) and cardiac catheterization were performed and showed hypertensive non-obtrusive coronary artery disease and left ventricular hypertrophy with diastolic dysfunction.   On discharge from hospital care, the Veteran was restricted to no lifting of more than 151 pounds, and a slow return to regular activity.

On VA examination in September 2006, the Veteran endorsed walking six miles a day and being able to do calisthenics and toning exercises without chest pain.  However, during unusual exertion, he was able to take nitroglycerin with immediate relief of chest pain.  Heart sounds were regular, as was the heart size.  There was no dyspnea or rales, no edema, and no organomegaly.  Testing revealed that symptoms of dyspnea, fatigue, angina, dizziness, or syncope occurred at the level of 8 to 10 METs

On cardiology consultation in March 2007, the Veteran had moderate coronary artery disease.  He endorsed retaining fluid and edema of the lower extremities three days prior, and stated that after attending church on the day of his admission for treatment, he developed chest tightness after laying down to rest.  Tightness was accompanied by shortness of breath, pain down his left arm, and fatigue.  There was no nausea, vomiting, or diaphoresis.  Radiographic imaging revealed mild congestive heart failure, which was improving, and an EKG indicated mild concentric left ventricular hypertrophy with an ejection fraction of 65 percent.

In November 2007 the Veteran endorsed three episodes of chest pain since undergoing coronary angiography, each lasting 10 minutes.  Episodes of chest pain were assessed as being possibly related to hypertension and poor blood pressure control.

On VA examination in November 2007, the Veteran's maximum work load was of 10.10 METs, and stress testing was stopped due to fatigue.  A resting EKG was normal, and the Veteran's functional capacity was described as normal.  Heart rate response to exercise was adequate, and occasional ventricular premature contractions were noted to be isolated.  Heart sounds were regular and without murmurs or gallops.  There was no bruits, or edema, and x-ray imaging showed a normal heart size.  There was no evidence of congestive heart failure, rales, edema or liver enlargement.  Pulmonary vein Doppler flow was normal, and the ejection fraction was 65 to 70 percent.

In January 2008, testing showed 65 to 70 percent ejection fraction with left ventricular diastolic dysfunction.

In March 2008, the Veteran was seen in an emergency department with chest pain and shortness of breath with any exertion over the preceding four days.  He also had shortness of breath at night, and been sleeping sitting up in a chair for the past five days.  It was indicated that the Veteran's symptoms may have singled a worsening of angina and heart failure.  A chest x-ray in March 2008 revealed moderate to severe cardiomegaly with right-sided effusion.

Chest radiography in October 2008 revealed no cardiopulmonary abnormality.  An EKG showed first degree atrioventricular block.  He reported chest pain and dyspnea on exertion, but that the pain was relieved with nitroglycerine.

After a careful review of the record, the Board finds the Veteran's hypertensive cardiovascular disease to be 30 percent disabling.  As stated above, the current 30 percent evaluation contemplates coronary artery disease with a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray.  38 C.F.R. § 4.104, DC 7005 (2010).  In order to warrant a higher evaluation, there must be more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  Id.

In this case, the Veteran's workload resulting in dyspnea, fatigue, angina, dizziness, or syncope, has been no less than 8 METs throughout the period on appeal.  Furthermore, although he has left ventricular dysfunction, the ejection fraction has been no less than 65 percent.  The Board does note some evidence of acute congestive heart failure, however none has been shown or alleged within the past year; and to the extent that the Veteran has experiences episodes of congestive heart failure in the past, such episodes have been limited to one or fewer per year.

The Board finds the Veteran's statements to be credible.   However, the objective evidence of record nonetheless indicates that a higher evaluation is not warranted based on his current level of symptomatology.

Based on the foregoing, the Board concludes that the Veteran's hypertensive cardiovascular disease has been 30 percent disabling throughout the period on appeal.  As the preponderance of the evidence is against the claim, there is no doubt to be resolved.   38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

Extraschedular Consideration

Consideration of referral for an extraschedular rating requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating adequately contemplates the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted.  Having reviewed the evidence, the Board finds that referral to Under Secretary for Benefits or the Director of the Compensation and Pension Service for determination and assignment of extraschedular ratings is not warranted, as the schedular evaluations assigned adequately contemplate the claimant's levels of disability and symptomatology.

Hypertension

The matter of entitlement to service connection for hypotension was previously addressed and denied in a rating decision of October 1985.  The matter was appealed to the BVA and in a February 1988 decision the Board denied service connection for hypertension and hypotension on a direct basis.  The Veteran applied to reopen his claim on a secondary basis, however entitlement was denied in a rating decision of July 1991.  At that time, the Veteran argued that hypertension was due to his service-connected PTSD.  He now applies to reopen a claim of entitlement to service connection for hypertension as secondary to his service connected diabetes mellitus.

Following issuance of the July 1991 rating decision, the appellant was informed of the decision and of his right to appeal.  When a claimant fails to timely appeal an RO decision denying his claim for benefits, that decision becomes final and can no longer be challenged.  See DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006).  Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.  

Here the Veteran did not submit a timely Notice of Disagreement after the July 1991 rating decision, and the denial is final.  However, pursuant to 30 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied.  When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).  Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim.  Evans v. Brown, 9 Vet. App. 273 (1996). 

The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits.  Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996).  Therefore, regardless of the manner in which the RO characterized the issue, the initial question before the Board is whether new and material evidence has been received.  

Here, the Board finds that new and material evidence has been received since the prior final denial in 1991.  Specifically, the Veteran's current claim is based on the relation of hypertension to his service-connected diabetes mellitus.  At the time of the prior denial, diabetes had not been diagnosed nor had service connection been established.  As these facts are central to his claim, and are new and material to the record, the Veteran's claim of entitlement to service connection on a secondary basis for hypertension is reopened.  In the alternative, this would be viewed as a new claim based upon the addition of another service connected disease.

The Board notes that new and material evidence has only been received with respect to hypertension as secondary to diabetes mellitus.  No new and material evidence has been received relating to service connection for hypertension as secondary to PTSD, and thus aspect of the Veteran's previously denied claim remains denied.  Additionally, the Veteran has specifically sought to reopen entitlement to service connection on a secondary basis, not on a direct basis.  In order to avoid the pitfalls of revisiting a finally denied claim that has not been properly reopened, the Board limits the scope of the reopened claim to entitlement to service connection for hypertension as secondary to diabetes mellitus.

Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Holton v. Shinseki, 557 F.3d 1362 (C.A. Fed. 2009) (March 5, 2009).  The absence of any one element will result in the denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).

In May 2006, the Veteran submitted a claim regarding entitlement to service connection for hypertension as secondary to diabetes.  In the January 2007 rating decision on appeal, the RO addressed entitlement to service connection for hypertension and hypotension.  As an initial matter, to the extent that the Veteran does not have hypotension, any claim of service connection for that disability fails for lack the existence of the disability.  Coburn, supra.

Additionally, as the issue before the Board concerns entitlement to service connection on a secondary basis, the provisions of Sections 3.307 and 3.309 are not for application to the extent that service connection for hypertension may be presumed if it became manifest to a degree of 10 percent disabling during the Veteran's first year after separation from service.  See 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010).

Except as provided in 38 C.F.R. § 3.300(c), a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. 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 caused or aggravated by service.  Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra.  Thus, in this case, in order to warrant service connection for hypertension on a secondary basis, the evidence must show that it was caused or aggravated by a service-connected disease or injury.

Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury."  Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states:

(b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002).

The Veteran was noted to be hypertensive on admission for treatment of substance abuse in July 1985.  In April 1989 he was positive for hypertension, though he reported his blood pressure was under better control than it had been in the past.  Blood pressure was 173/94.

In July 2001, the Veteran reported having had trouble holding his urine and needing to evacuate his bladder every 30 minutes; these symptoms had begun two to three months prior.  Testing confirmed that the Veteran had diabetes mellitus.

On VA examination in September 2006, the Veteran reported headaches, shortness of breath and recurrent chest pain when his blood pressure was high.  Blood pressure readings showed 187/104, 187/97, and 202/111.  The Veteran reported having been diagnosed with diabetes mellitus in 1998.  It was noted that hypertension had been diagnosed 15 years prior, and that therefore hypertension preceded the onset of diabetes.  Accordingly, the examiner determined that it was less likely than not that hypertension was due to diabetes mellitus.

In January 2007, hypertension was reported to be difficult to control, but that blood pressure readings had been declining since starting alpha-blockers.

Report of cardiology consultation in November 2007 indicated that hypertension had been uncontrolled for a long time, and that hypertension was likely secondary to hyperaldosteronism.

VA examination in December 2007 indicated that because hypertension was diagnosed prior to the onset of diabetes mellitus, it was less likely than not that hypertension was secondary to diabetes mellitus.  Cardiology consultation in July 2008 indicated that hypertension was likely secondary to hyperaldosteronism.

In considering the lay and medical history as detailed above, the Board notes that the appellant is competent to give evidence about what he has experienced.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Moreover, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis.  Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

In the present case, symptoms of hypertension may be capable of lay observation and to the extent that they are, his statements constitute competent evidence.  However while symptoms may be capable of lay observation, Layno v. Brown, 6 Vet. App. 465 (1994), the cause of such symptoms is more complicated.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The same is true with regard to the Veteran's competence in drawing a causal connection between hypertension and his service-connected diabetes mellitus.  Accordingly the Veteran's statements averring to the etiology of hypertension are not competent.

Of far greater probative value are the competent opinions of medical professionals.  Such opinions indicate not only that hypertension is not due to diabetes mellitus, but that the likely source of the Veteran's hypertension, is hyperaldosteronism; a nonservice-connected disorder.  Furthermore, the Board notes that although the Veteran believes that his hypertension was caused by diabetes, the onset of diabetes was more than 10 years after the onset of hypertension.  The Board also notes that no competent evidence of record indicates that diabetes mellitus caused any increase or aggravation of the Veteran's hypertension.

In conclusion, the preponderance of the evidence is against the claim, and there is no doubt to be resolved.  38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).

ORDER

An evaluation of 50 percent for PTSD prior to December 15, 2007 is granted subject to the controlling regulations applicable to payment of monetary benefit.

An evaluation in excess of 50 percent for PTSD disability is denied.

An evaluation in excess of 30 percent for Hypertensive cardiovascular disease with diastolic dysfunction and non obtrusive coronary artery disease associated with diabetes mellitus type II is denied.

The application to reopen a claim of entitlement to service connection for hypertension as secondary to diabetes mellitus is granted.

Service connection for hypertension is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs