Citation Nr: 1134877 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 08-06 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a left ankle disorder. 2. Whether new and material evidence has been received to reopen a previously denied claim for service connection for headaches. 3. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a back disorder. 4. Whether new and material evidence has been received to reopen a previously denied claim for service connection for depression. 5. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a bilateral foot disorder. 6. Whether new and material evidence has been received to reopen a previously denied claim for service connection for obstructive sleep apnea. 7. Whether new and material evidence has been received to reopen a previously denied claim for service connection for hypertension. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for an acquired psychiatric disorder. 10. Entitlement to service connection for a bilateral foot disorder. 11. Entitlement to service connection for obstructive sleep apnea. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia (RO). As a matter of history, the Veteran's claims for service connection were previously denied in a January 2003 rating decision, because there was no evidence that the Veteran's obstructive sleep apnea was related to his period of service, and there was no evidence of current diagnoses of left ankle disorder, headaches, a back disorder, a bilateral foot disorder, hypertension, or depression. The Veteran did not appeal, and that rating decision became final. In being cognizant of the the Court of Appeals for Veterans Claims (Court) decision, Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has re-characterized the claim for service-connection for depression as a more general claim for service connection for an acquired psychiatric disorder. This is in keeping with Clemons, where VA was instructed to consider alternative current psychiatric disabilities within the scope of the filed claim. Here, a preliminary review of the record shows that the Veteran has been variously diagnosed with psychiatric disorders. The issues of entitlement to service connection for a bilateral foot disorder, obstructive sleep apnea, and an acquired psychiatric disorder 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. In a January 2003 rating decision, the RO denied the claim for service connection for a left ankle disorder because no evidence had been received that showed any currently diagnosed disorder. The Veteran did not appeal that decision, and it became final. Since January 2003, VA has not received evidence that shows the Veteran has a current diagnosis relating to his left ankle. 2. In a January 2003 rating decision, the RO denied the claim for service connection for headaches because no evidence had been received that showed any currently diagnosed disorder. The Veteran did not appeal that decision, and it became final. Since January 2003, VA has not received evidence that shows the Veteran has a current diagnosis of headaches. 3. In a January 2003 rating decision, the RO denied the claim for service connection for back disorder because no evidence had been received that showed any currently diagnosed disorder. The Veteran did not appeal that decision, and it became final. Since January 2003, VA has not received evidence that shows the Veteran has a current diagnosis relating to his back. 4. In a January 2003 rating decision, the RO denied the claim for service connection for depression because no evidence had been received that showed any currently diagnosed disorder. The Veteran did not appeal that decision, and it became final. Since January 2003, VA has received additional pertinent evidence that shows a current diagnosis of a psychiatric disorder that may be related to his period of service, which raises a reasonable possibility of substantiating that claim. 5. In a January 2003 rating decision, the RO denied the claim for service connection for a bilateral foot disorder because no evidence had been received that showed any currently diagnosed disorder. The Veteran did not appeal that decision, and it became final. Since January 2003, VA has received medical evidence that shows the Veteran has been diagnosed with tinea cruris on his feet. 6. In a January 2003 rating decision, the RO denied the claim for service connection for obstructive sleep apnea because no evidence had been received that showed it was incurred in or related to his period of service. The Veteran did not appeal that decision, and it became final. Since January 2003, VA has received the additional pertinent evidence that suggests that sleep apnea may have begun in service. 7. In a January 2003 rating decision, the RO denied the claim for service connection for hypertension because no evidence had been received that showed any currently diagnosed disorder. The Veteran did not appeal that decision, and it became final. Since January 2003, VA has received the additional pertinent evidence that shows a current diagnosis of hypertension. 8. The preponderance of the medical evidence of record is against a finding that hypertension had its onset in service or within the first year after separation from service, or that hypertension is otherwise related to service. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the last final rating decision to reopen the claim of service connection for a left ankle disorder. 38 U.S.C.A. § § 5108, 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 2. New and material evidence has not been received since the last final rating decision to reopen the claim of service connection for headaches. 38 U.S.C.A. §§ 5108, 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 3. New and material evidence has not been received since the last final rating decision to reopen the claim of service connection for a back disorder. 38 U.S.C.A. §§ 5108, 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 4. New and material evidence has been received since the last final rating decision to reopen the claim of service connection for an acquired psychiatric disorder, to include depression. 38 U.S.C.A. §§ 5108, 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 5. New and material evidence has been received since the last final rating decision to reopen the claim of service connection for a bilateral foot disorder. 38 U.S.C.A. §§ 5108, 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 6. New and material evidence has been received since the last final rating decision to reopen the claim of service connection for obstructive sleep apnea. 38 U.S.C.A. §§ 5108, 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 7. New and material evidence has been received since the last final rating decision to reopen the claim of service connection for hypertension. 38 U.S.C.A. §§ 5108, 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 8. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the claimant, which information and evidence VA will seek to provide, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specific to requests to reopen a previously-denied claim for service connection, VA must provide notice that describes the basis for the previous denial, as well as the reopening criteria and the criteria for establishing the underlying claim for service connection found to be unsubstantiated in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). Here, VA sent notice letters to the Veteran in December 2005 and July 2006, in which the Veteran was informed about the evidence required to substantiate the claims and his and VA's respective duties for obtaining evidence. In December 2005, VA notified the Veteran of what constituted "new" and "material" evidence pertaining to his claims for service connection. See Kent, 20 Vet. App. at 9. Through the July 2006 notice letter, VA informed the Veteran on how it determines the effective date for the award of benefits if service connection is to be awarded consistent with the holding in Dingess. Although the July 2006 notice was sent after the initial adjudication, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the July 2006 letter fully complied with the requirements of 38 U.S.C. § 5103(a), 38 C.F.R. § 3.159(b), Dingess, supra, and after the additional notices were provided the case was readjudicated, and a January 2008 statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. On review of the claim file, it appears that the Veteran has been provided with sufficient notification, and he has been given every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Under these circumstances, the Board has determined that the notification requirements of the VCAA have been satisfied. As to VA's duty to assist the appellant with the obtaining evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has associated with the record copies of the Veteran's service treatment records, identified post-service medical records, and various statements submitted by the Veteran and several of his friends. The Board recognizes that the Veteran was not afforded a VA examination in conjunction with his claims for a left ankle disorder, headaches, and a back disorder. Since the Board is not reopening the previously-denied claim, there is no basis upon which to direct a medical examination. 38 U.S.C.A § 5103A(d), (g); see Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (holding that adequacy of VA medical examination is mooted upon Board's determination that claimant not entitled to reopening of claim, and conduct of VA medical examination, when claimant had not presented new and material evidence.) While VA has not afforded the Veteran a comprehensive medical examination relating to his claims for service connection for hypertension, the Board finds that such an examination is not necessary to render a decision under the circumstances of this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Under McLendon, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id., 20 Vet. App. 79. A VA examination under the standards of McLendon is not warranted in this case. While the record reflects a current diagnosis for hypertension, post-service treatment records show that the Veteran was not first diagnosed or treated for any of his current disorders until several decades after his discharge. Additionally, there is no competent evidence that indicates that there "may" be a relation between the Veteran's current diagnosed disorder and his service. The Board has considered the lay statements from the Veteran, which aver that his hypertension had an onset during his period of service. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The outcome of this claim, however, hinges on whether the competent evidence indicates a diagnosis of hypertension at that time or within the first year after his separation from service. Notably, hypertension is a disorder that is demonstrated through the results of blood pressure testing, and the Board observes that the criteria of 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertension) do not contemplate any symptoms that would be capable of lay observation. Simply stated, referral of these claims for an examination or obtainment of a medical opinion under the circumstances here presented would be a useless act. 38 U.S.C.A. § 5103A(a)(2); see also McLendon, 20 Vet. App. 79. In the absence of evidence of hypertension prior to 1999, a referral of this claim to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed hypertension would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the Veteran's hypertension and his military service would necessarily be based solely on the Veteran's uncorroborated assertions. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised on an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). Accordingly, the Board finds that no prejudice to the appellant will result from an adjudication of the matter on appeal. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Petition to Reopen Previously Denied Claims The Veteran seeks to reopen his claims for entitlement to service connection for obstructive sleep apnea, depression, hypertension, a bilateral foot disorder, a left ankle disorder, headaches and a back disorder. The Veteran's claims were originally denied because there was no evidence that the Veteran's obstructive sleep apnea was related to his period of service, and there was no evidence of a current diagnosis of left ankle disorder, headaches, back disorder, bilateral foot disorder, hypertension, or depression. As noted above, the Veteran did not appeal the January 2003 rating decision, in which the RO denied the Veteran's claims for entitlement to service connection. At the time of the January 2003 decision, the evidence failed to show that the Veteran's obstructive sleep apnea was incurred in or related to his period of service, and the evidence failed to show a diagnosis for depression, hypertension, a bilateral foot disorder, a left ankle disorder, headaches and a back disorder. The rating decision became the last final decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The Veteran seeks to reopen his claims. A previously-denied claim may be reopened, and its former disposition reviewed if new and material evidence is presented or secured with respect to a claim that has been disallowed. 38 U.S.C.A. § 5108. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened prior to addressing the merits of the previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996). In order to reopen the Veteran's claim, the Board must first determine whether the Veteran has submitted new and material evidence. 38 C.F.R. § 3.156. Under current VA law, "new" evidence is defined as evidence that has not been previously submitted to the agency decision makers; and "material" evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. Id. VA is required to first review the evidence submitted since the last final disallowance of a claim on any basis for its newness and materiality. See Evans v. Brown, 9 Vet. App. 273 (1996). The evidence received subsequent to the last final decision in this case is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995). A review of the applicable law pertaining to service connection is helpful in determining whether the Veteran has submitted any new and material evidence. In general, service connection will be granted for a disability resulting from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The evidence of record at the time of the January 2003 rating decision consisted of the following: the Veteran's service treatment records and some post-service private treatment records. A review of the service treatment records show complaints of headaches, back problems, depression and nervousness, and feet problems, and there was a single episode of elevated blood pressure. There is no evidence of any treatment for or complaints of left ankle problems or sleep impairment. An April 1974 service treatment record shows a notation about possible increased blood pressure, and the Veteran reported a history of headaches that "comes and goes" for the past year. On physical examination, it was noted that the Veteran's blood pressure reading was 130/90, and the headaches were specific to the neck muscles. A diagnosis of tension headaches was given. A May 1974 service treatment record shows complaints of headaches and back pain, and a request to see a psychiatrist. It was noted that the Veteran reported that the headaches and back pain had begun upon his entrance into service. An impression of passive aggressive personality was given. A December 1974 service treatment record shows that the Veteran presented with complaints of back strain and, after physical examination, the Veteran was diagnosed with lumbar strain. A March 1975 service treatment record shows that the Veteran sought treatment for acute neck pain and right ankle discomfort. The Veteran reported that he had been injured during a football game when he fell onto the back of his neck. Physical examination of the right ankle revealed full range of motion and no other abnormalities. X-ray film of the cervical spine revealed no fractures or significant abnormalities. A subsequent March 1975 service treatment record shows that the Veteran presented with complaints of frequent headaches and other cold-related symptomatology and the Veteran was diagnosed with a cold syndrome. An April 1975 service treatment record shows that the Veteran presented with injuries after he had been stuck in the face with a baseball bat and examination revealed effusion over the zygomatic arch. X-ray film of the face revealed no fractures. A June 1975 service treatment record shows the Veteran was diagnosed with athlete's foot and fungus infection on his feet and toes. The report of a June 1975 examination prior to separation shows that examination revealed no physical or psychiatric abnormalities and the Veteran had a blood pressure reading of 120/74. The associated report of medical history shows that the Veteran indicated a positive history of frequent headaches, recurrent back pain, cramps in his legs, foot problems, and depression and nervousness. The examiner's summary section contained the following findings. The Veteran reported he had a history of headaches only. He also reported a history of frequent back pain and stiffness and a positive history of fungus infection on his feet. The Veteran reported that he had been informed he had elevated blood pressure on one occasion but his blood pressure within normal limits on examination. The Veteran's psychiatric symptoms were associated with familial problems, and it was advised that he seek service legal counsel. The post-service private treatment records show that the Veteran had been diagnosed with obstructive sleep apnea and hypertension. A December 1999 private treatment record shows a blood pressure reading of 132/90 and an impression of high blood pressure. In a December 1999 sleep study report, it was noted that the Veteran reported that he experienced morning headaches and general malaise and arthralgia. He denied any problems in his lower extremities and he reported a medical history of history of hypertension, depression and anxiety. A subsequent August 2000 private treatment record shows a diagnosis of hypertension, uncontrolled. The RO denied the claims for depression, hypertension, a bilateral foot disorder, a left ankle disorder, headaches and a back disorder because the evidence did not show currently diagnosed disorders. The RO denied the claim for obstructive sleep apnea on the basis that the medical evidence did not show that the current disability was incurred in service or related to service. Since the January 2003 rating decision, the additional evidence that the Veteran has submitted includes: VA treatment records, private medical treatments, private medical statements, the Veteran's testimony and additional statements, and statements from his friend and family members. The report of an April 2003 VA general examination shows that the Veteran had a history of sleep apnea, and he complained of sleeping problems, nonspecific pain in both shoulders, and continuous pain in his feet. Physical examination revealed that the Veteran had blood pressure reading of 164/82, 174/92, and 164/98. He was given diagnoses of arterial hypertension and obstructive sleep apnea. Subsequent VA treatment records show that the Veteran has been treated for hypertension, obstructive sleep apnea, possible diabetic neuropathy in his lower extremities, psychiatric disorders (posttraumatic stress disorder (PTSD)), and skin problems (tinea cruris) on his feet and ankles. A June 2005 addendum to a VA pulmonary consultation report contains a medical statement that links the Veteran's obstructive sleep apnea to his period of service based on the Veteran's reported history of his sleeping problems beginning in service. A July 2010 private medical statement from Dr. D. F. K. contains his medical opinion that the Veteran current psychiatric complaints of chronic depression, anxiety and anger management may be secondary to the problems that he experienced while on active duty. Dr. K. indicated that the Veteran had periods of absence without leave during his service and he was separated with a "less than honorable" discharge. Dr. K. has diagnosed the Veteran with posttraumatic stress disorder due to childhood sexual trauma. The record also contains statements from the Veteran's brother, his ex-wife, and a friend from service. The Veteran's brother reported that the Veteran changed physically and mentally after he entered into the service. His ex-wife reported that after the Veteran went into the service, she observed that he began having difficulty sleeping and he complained of having headaches, back pain and ankle pain. The Veteran's friend reported that he remembered observing that the Veteran had sleeping problems in service and the Veteran had injured his head, neck and ankle during a football game. In July 2010, the Veteran testified during a Board hearing and he reported that since his period of service, he has received treatment for ankle problems, back problems, hypertension, and psychiatric disorders. He reported that he was first diagnosed with hypertension in 1990. Left Ankle Disorder, Headaches, and Back Disorder The evidence of record prior to the January 2003 rating decision established that the Veteran sought treatment for headaches and back problems during his period of service, but there was no evidence of a chronic disability shown at the time of his separation or at any point since then. At no point has the evidence shown that the Veteran has suffered any chronic left ankle problems during his period of service or as a result of his period of service. The pertinent additional evidence since the January 2003 rating decision is contained in the additional testimony from the Veteran and the lay statement from the Veteran's friend and family. This lay evidence continues to show that the Veteran reported that his headaches, back pain and left ankle problems had an onset in service. While the Veteran testified that he sought private treatment for these medical conditions since his separation from service, he reported that those medical records are not available or he does not remember the name or the location of the medical provider. None of the additional VA or private treatment records show that he has any current chronic diagnosed disorders involving headaches, back problems or left ankle problems. There is no other additional evidence of record that pertains to these claims of service connection. The Veteran's friends' and family's additional statements only provided cumulative or redundant information pertaining to the Veteran's reports that he sought treatment for headaches, back pain and left ankle pain in service, and they do not provide new evidence that relates to unestablished fact (current diagnosed disorders) necessary to substantiate his claim. Further, the Veteran was notified that in order to reopen his claim, the Veteran needed to provide VA with new and material evidence which at least indicated that he had current chronic disabilities that were in some way related to his service. New and material evidence has not been received and the claims for service connection may not be reopened. See 38 C.F.R. § 3.156(a). Bilateral Foot Disorder, Acquired Psychiatric Disorder, and Hypertension In its January 2003 rating decision, RO denied the claims for service connection for bilateral foot disorder, depression, and hypertension on the basis that there was no medical evidence that the Veteran had current chronic disorders that were related to his period of service. Evidence received since the January 2003 rating decision includes VA and private treatment records that show current diagnoses for tinea cruris, hypertension and various psychiatric disorders. The record also now contains the July 2010 private medical statement from Dr. K., which vaguely suggests a possible link between the Veteran's current psychiatric problems and service. This evidence received since January 2003 is neither cumulative nor redundant of the evidence previously of record. At the time of the January 2003 rating decision, the evidence did not show any medical evidence of current chronic disorders. The evidence received since the January 2003 rating decision is new in that it was not previously of record. It is material in that it specifically relates to unestablished facts necessary to substantiate the claims for service connection and raises a reasonable possibility of substantiating the claims. Resolving all doubt in favor of the Veteran, new and material evidence has been received, and the claims may be, and are, reopened. Obstructive Sleep Apnea The Board finds that the additional evidence received since the RO's January 2003 relates to the unestablished fact necessary to substantiate the Veteran's obstructive sleep apnea claim - whether the Veteran's reported disorder is related to service. Specifically, the record now contains the VA medical provider's June 2005 medical statement contained in the addendum to the VA pulmonary consultation report, which links the Veteran's obstructive sleep apnea to his period of service based on the Veteran's reported history of his sleeping problems beginning in service. This medical statement provides new evidence which relates to the question of whether the Veteran's current disorder is related to service. The Board also finds that the additional evidence is neither cumulative nor redundant, and that it raises a reasonable possibility of substantiating the claim. Thus, new and material evidence has been received pursuant to 38 C.F.R. § 3.156(a), and thereby meets the requirements to reopen. On that basis, the claim for service connection for sleep apnea is reopened and the VA must consider the appeal on the merits of the underlying claim for service connection. 38 C.F.R. § 3.156. 3. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including cardiovascular-renal diseases, may be presumed to have incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792-67793 (Nov. 7, 2002). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102 (2008). On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for hypertension. He asserts that his hypertension had an onset during his period of service, and he has testified that he was first informed he had elevated blood pressure while he was in the service. While the Board does not doubt the statements from the Veteran that he had some symptoms of elevated blood pressure during his period of service, the fact remains that the claims file is completely devoid of any objective medical evidence showing a diagnosis of hypertension until 1999. After a review of the record, the Board finds that the preponderance of the medical evidence is against the Veteran's claim for entitlement to service connection for hypertension. VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90mm, or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm, or greater, with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Additionally, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. The Board reiterates that a diagnosis of hypertension for VA purposes rests on these objective, measurable findings, and not on reported symptoms. There is no medical showing that the Veteran's hypertension existed during service. While the service treatment records show that the Veteran experienced a single episode of elevated blood pressure in 1974, there was no diagnosis of hypertension at that time or at any other point during his period of service. The report of the 1975 examination prior to separation shows that the Veteran's cardiovascular system was evaluated as normal and his blood pressure was recorded as 120/70. Further, the post-service records show that the earliest medical record of hypertension is not until 1999, more than two decades beyond the one year presumptive period for hypertension. 38 C.F.R. §§ 3.307, 3.309. The Board has considered the sworn (and credible) testimony from the Veteran that his was first informed that he had high blood pressure during his period of service. As noted above in the Introduction, while the Veteran is competent to report on what he has been informed, the evidence does not reflect that he is competent to report that he had hypertension as defined by VA regulations during his period of service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles, 16 Vet. App. at 374-75. Such opinions require medical expertise which the Veteran and his wife have not been shown to have and the type of objective findings required for a hypertension diagnosis (blood pressure readings) are not readily observable by a lay person. Id. Without medical evidence that shows the Veteran had treatment for hypertension, as defined by the criteria of 38 C.F.R. § 4.104, Diagnostic Code 7101, prior to 1999, there is no basis to show service connection on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Moreover, this large evidentiary gap between the Veteran's active service (ending in 1975) and the earliest objective medical evidence of hypertension (in 1999) goes against the Veteran's claim on a direct basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). As the medical evidence does not show that the Veteran's hypertension was manifested during service or in the first year thereafter, service connection can only be granted if there is some other medical evidence linking the current condition to service. Here, there is no such medical evidence. The evidence of record is not in relative equipoise. The preponderance of the evidence is against the claim for entitlement to service connection for hypertension, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. ORDER New and material evidence has not been received to reopen a claim for entitlement to service connection for left ankle disorder, and the claim remains denied. New and material evidence has not been received to reopen a claim for entitlement to service connection for headaches, and the claim remains denied. New and material evidence has not been received to reopen a claim for entitlement to service connection for back disorder, and the claim remains denied. New and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. New and material evidence has been received to reopen a claim for entitlement to service connection for bilateral foot disorder. New and material evidence has been received to reopen a claim for entitlement to service connection for obstructive sleep apnea. New and material evidence has been received to reopen a claim for entitlement to service connection for hypertension. Entitlement to service connection for hypertension is denied. REMAND With respect to the reopened claims of service connection for an acquired psychiatric disorder, obstructive sleep apnea and a bilateral foot disorder, the Veteran has not been provided with VA examinations in conjunction with his claims. The evidence of record shows that the Veteran has a current diagnosis for tinea cruris on his feet. A review of the Veteran's service treatment records shows that he sought treatment for fungal infection on his feet in 1975. Further, the Veteran has testified that he has experienced skin problems with his feet since his period of service. The Board observes that the Veteran is competent to report the onset of the problems involving his feet during his period of service and the presence of his bilateral foot problems since then. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). With respect to his obstructive sleep apnea, the record now contains a VA medical statement that indicates a link between his currently diagnosed disorder and his period of service. Also, the record now contains Dr. K.'s July 2010 medical statement, which may have provided a possible link between the Veteran's current psychiatric problems and service. Therefore, the Board finds that examinations are required for these claims. On remand, the Veteran should be scheduled for VA medical examinations in conjunction with his claims for a bilateral foot disorder, obstructive sleep apnea and an acquired psychiatric disorder in order to determine whether his claimed conditions are etiologically related to his period of service. See 38 U.S.C.A. § 5103A. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should schedule the Veteran for VA examinations by the appropriate providers to determine the etiology of his claimed a bilateral foot/skin disorder and obstructive sleep apnea. All studies deemed appropriate should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner for review in conjunction with this examination. This fact should be so indicated in the examination report. After review of the claims file and examination, the examiner(s) should identify the nature of any current disorder involving the Veteran's feet and determine whether he had a current diagnosis of obstructive sleep apnea. The examiner(s) should then offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed disorder is etiologically related to his period of service. The examiner(s) should be asked to comment on any medical evidence shown in service that indicates the onset of his diagnosed disorders. The examiner should explain the rationale for all opinions expressed. 2. The RO/AMC should schedule the Veteran for VA psychiatric examination to determine the nature and etiology of any current psychiatric disorder. The Veteran's VA claims folder should be made available to the examiner for review in connection with the examination. In the examination report, the examiner should identify the nature of any psychiatric disorder. For any diagnosed psychiatric disorder, the examiner should provide a medical opinion indicating whether it is at least as likely as not (e.g., a 50 percent or greater probability) that such condition is related to service. For any diagnosed disorder that is found to have pre-existed the Veteran's period of service, the examiner should provide an opinion that addresses whether it is at least as likely as not (50 percent probability or more) that the pre-existing psychiatric disorder increased in severity during the Veteran's period of active service beyond the natural progression of the disease. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. This fact should be so indicated in the examination report. The examiner should include in the examination report the rationale for any opinion expressed. If the examiner is unable to address any inquiry sought above, and then he or she should explain why. 3. Thereafter, the RO or the AMC should readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims file is returned to the Board for further appellate action. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs