Citation Nr: 1134898 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 08-12 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim of service connection for hypertension, claimed as secondary to type II diabetes mellitus. 3. Entitlement to service connection for hypertension, claimed as secondary to type II diabetes mellitus. 4. Whether new and material evidence has been received to reopen a claim of service connection for sleep apnea. 5. Entitlement to service connection for sleep apnea. 6. Entitlement to a compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1968 to April 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the claim of service connection for sleep apnea, reopened and denied the claim of service connection for hypertension, continued the noncompensable rating for hearing loss, and denied service connection for PTSD. In June 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. At the hearing the Veteran submitted additional evidence with a waiver of initial RO consideration. An interim April 2011 rating decision granted service connection for anxiety disorder not otherwise specified (NOS). Hence, this case is distinguished from the situation outlined in the United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board finds that the issue on appeal involves service connection for PTSD only. Although the RO reopened the Veteran's claim of service connection for hypertension, the question of whether new and material evidence has been received to reopen the claim must be addressed in the first instance by the Board because that issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The matters of service connection for sleep apnea on de novo review and an increased rating for bilateral hearing loss are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran manifests PTSD which results from a stressor event that occurred in a hostile environment and is confirmed by a VA psychiatrist. 2. An unappealed May 2004 RO rating decision denied the Veteran's claims of service connection for hypertension and sleep apnea based upon findings that hypertension was unrelated to the Veteran's service or to diabetes mellitus and that the Veteran did not have a diagnosis of sleep apnea. 3. Evidence received since the May 2004 rating decision includes a private opinion relating the Veteran's hypertension to diabetes mellitus, and VA outpatient treatment records establishing a diagnosis of sleep apnea; such evidence relates to the unestablished facts necessary to substantiate the claims of service connection for hypertension and sleep apnea; and raises a reasonable possibility of substantiating the claims. 4. It is reasonably shown that the Veteran has hypertension that is causally related to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2010). 2. New and material evidence has been received, and the claim of service connection for hypertension is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). 3. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). 4. New and material evidence has been received, and the claim of service connection for sleep apnea is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to these claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The Veteran was advised of VA's duties to notify and assist in the development of his claims prior to their initial adjudication. A May 2006 letter explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing. It also informed the Veteran of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO arranged for a VA examination in August 2010. The examination is adequate as the examiner considered the evidence of record and the reported history of the Veteran, conducted an examination of the Veteran, noted pertinent history and all findings necessary for a proper determination in the matter, and explained the rationale for the opinion offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. B. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection Criteria Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). There is conflicting medical evidence that is critical to a determination in this matter. When evaluating this evidence, the Board must analyze its credibility and probative value, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). PTSD Establishing service connection for PTSD requires: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed stressor in service. 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id., see also 38 C.F.R. § 4.125(a) (2010). VA has recently amended the regulations governing the evidentiary standard for establishing an in-service stressor: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39843 (July 13, 2010); see also 75 Fed. Reg. 41092 (July 15, 2010) (correcting effective and applicability dates). August through December 2006 VA outpatient treatment records note diagnoses of PTSD and alcohol use vs. abuse. In a May 2006 statement the Veteran related that he believed that he had PTSD and that he wanted to get treatment. An August 2006 VA outpatient treatment record (initial psychiatric evaluation) notes that the Veteran had trouble sleeping ever since Vietnam and that he had flashbacks of witnessing fellow soldiers getting shot and seeing one of his commanding officers getting the "top of his head cut off by a helicopter." The Veteran met: (1) one or more criteria for persistently re-experiencing a traumatic event; (2) three or more criteria for avoidance of triggers and numbing; and (3) and two or more persistent symptoms of increased arousal (not present before trauma). The symptoms were noted to have persisted for more than a month causing clinically significant distress or impairment. The Axis I diagnosis was PTSD. On August 2010 VA examination, the Veteran reported that he was in a lot of firefights with small arms fire, that two or three people were killed right next to him, and that he also dealt with mortars and rockets. A quantitative psychometric assessment of PTSD symptoms severity was administered. The assessment scores revealed that criterion C and D (for a diagnosis of PTSD under the DSM-IV) were not met. The symptom validity measure administered was noted to reveal that the Veteran's symptoms were "probably valid." The examiner noted that the Veteran met the DSM-IV stressor criterion, but did not meet the DSM-IV criteria for a diagnosis of PTSD. The Axis I diagnosis was Anxiety Disorder not otherwise specified (NOS). The examiner noted that the Veteran did appear to be endorsing symptoms consistent with PTSD but the number, frequency, and severity of many of the reported symptoms appeared to be subclinical, warranting a diagnosis of Anxiety Disorder NOS instead of PTSD. In essence the examiner noted that the Veteran's symptoms which previously led to a diagnosis of PTSD warranted a diagnosis of Anxiety Disorder NOS in their current form and that the symptoms had reportedly been present since the Veteran's return from Vietnam. The August through December 2006 VA outpatient treatment records establish that the Veteran had a medical diagnosis of PTSD in accordance with the DSM-IV during the appeal period. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of adjudication). The provider on the Veteran's August 2006 VA psychiatric evaluation found a diagnosis of PTSD based upon the Veteran's stressors of seeing fellow soldiers being shot and of witnessing an officer being injured in service and the report is medical evidence of a causal nexus between the Veteran's symptomatology and the specific claimed stressor in service. [The Veteran reported similar stressors on his August 2010 VA examination which the examiner noted were related to fear of hostile military activity.] This assessment was approved by a VA psychiatrist. Overall, the Board notes that the Veteran has been diagnosed with both anxiety disorder NOS and PTSD, which are both recognized by VA as anxiety-type disorders. See 38 C.F.R. § 4.130. There appears to be some disagreement among VA professionals as to the appropriate diagnosis and, in particular, whether the Veteran meets the criteria for a PTSD diagnosis. The Board finds that the August 2006 VA evaluation diagnosis of PTSD is based on fear of hostile military action and meets the relaxed evidentiary standards of 38 C.F.R. § 3.304(f)(3). The stressor of witnessing fellow soldiers being shot is consistent with the places, types, and circumstances of the Veteran's service, was noted to be related to his PTSD symptoms, and was adequate to support the diagnosis then rendered. The Veteran is currently service-connected for an anxiety disorder. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran manifests PTSD which results from a stressor event that occurred in a hostile environment and is confirmed by a VA psychiatrist. This finding is essentially consistent with the August 2010 examiner opinion that the Veteran had been experiencing the same symptoms since his return to Vietnam, (related to fear of hostile military activity) and that those symptoms which previously led to a diagnosis of PTSD had changed in severity which warranted a current diagnosis of Anxiety Disorder NOS. In light of the foregoing, and resolving all reasonable doubt in favor of the Veteran, all of the factual and legal requirements have been met and service connection for PTSD is warranted. Hypertension and sleep apnea - Applications to reopen Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). The Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). A May 2004 rating decision denied the Veteran's claims of service connection for hypertension and sleep apnea based on findings that hypertension was unrelated to the Veteran's service or to diabetes mellitus and that the Veteran did not have a diagnosis of sleep apnea. He did not appeal that decision, and it is final. 38 U.S.C.A. § 7105. Evidence of record at the time of the May 2004 rating decision included: the Veteran's STRs which are silent for complaints, findings, treatment, or diagnosis relating to high blood pressure and sleep apnea; private outpatient treatment records noting a diagnosis of hypertension; and a report of February 2004 VA examination noting that the Veteran's hypertension was essential and not secondary to diabetes mellitus. As the Veteran's claims of service connection for service connection for hypertension and sleep apnea were previously denied based findings that hypertension was unrelated to the Veteran's service or to diabetes mellitus and that the Veteran did not have a diagnosis of sleep apnea, for evidence since received to be new and material, it must relate to those unestablished facts (i.e. it must show, or tend to show, that the Veteran's hypertension is related to his service or to his service-connected diabetes mellitus and/or that the Veteran has a diagnosis of sleep apnea). Pertinent (and new) evidence received since the May 2004 rating decision includes: The report of January 2007 VA examination noting that the Veteran's hypertension was not at least as likely as not related to diabetes mellitus as they were diagnosed concurrently; a July 2007 VA outpatient treatment record noting a diagnosis of sleep apnea; and an April 2011 private opinion noting that the Veteran had hypertension and diabetes mellitus which were related to each other and that the conditions commenced at the same time. The evidence received since May 2004 is new (as it was not previously of record), and it is material as it consists of an April 2011 private opinion from Dr. T.D.J. noting that that the Veteran had hypertension and diabetes mellitus which were related to each other and a July 2007 VA outpatient treatment record noting a diagnosis of sleep apnea. The new evidence pertains to the unestablished facts necessary to substantiate the claims of service connection for hypertension and sleep apnea; raises a reasonable possibility of substantiating the claims; and is material. Accordingly, the claims may be reopened. De novo consideration of the matters is addressed below. Hypertension - De novo review Certain chronic diseases (to include hypertension) may be service-connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (1 year for hypertension). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis relating to high blood pressure. August 1999 private outpatient treatment records note diagnoses of hypertension and non-insulin dependent diabetes mellitus. On February 2004 VA examination the Veteran reported that he was diagnosed with "essential hypertension about 14 years ago along with his diabetes mellitus." The diagnosis was essential hypertension, suboptimal control. The examiner opined that the Veteran's hypertension was diagnosed about the same time as his diabetes mellitus and over the years his kidney function had remained normal without signs of diabetic neuropathy; hence, it was his medical opinion that the Veteran's hypertension was of essential type and not secondary to diabetes mellitus. On November 2007 VA examination the examiner noted that the Veteran was diagnosed with diabetes and hypertension in 1997. The diagnoses were diabetes mellitus type II and essential hypertension. The examiner opined that the Veteran's hypertension was not at least as likely as not related to diabetes mellitus as the diagnosis was concurrent with diabetes. An April 2011 opinion from T.D.J., M.D. noting that the Veteran suffered from "[diabetes mellitus] and [hypertension] related to each other. These conditions commenced at the same time." The Veteran seeks service connection for hypertension as secondary to his service-connected diabetes mellitus. Service connection for diabetes mellitus has been established and the medical evidence of record shows a diagnosis of hypertension. The remaining criterion for establishing secondary service connection for the hypertension is whether competent evidence establishes that such disability was either caused by or aggravated by the Veteran's service-connected diabetes mellitus. That is a medical question. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The opinions of the February 2004 and November 2007 VA examiners were that the Veteran's hypertension was not related to his service-connected diabetes mellitus. For support, both opinions point to the fact that the conditions were diagnosed concurrently. The November 2004 examiner also pointed to the Veteran's normal kidney function and lack of neuropathy, but did not explain the significance of these findings or how they supported his opinion that the Veteran's hypertension was unrelated to his diabetes mellitus. It is additionally noteworthy that an April 2011 private outpatient treatment record notes that the Veteran does now have diabetic peripheral neuropathy (which was not considered by the November 2004 examiner). In April 2011 T.D.J. opined that the Veteran's diabetes and hypertension were related and pointed to the fact that the conditions commenced at the same time. The medical professionals all agree that the Veteran's hypertension and diabetes commenced at the same time and were diagnosed concurrently; however, the significance of that fact is interpreted differently (both in support of and against the Veteran's theory of entitlement). No opinion contains a superior or sufficiently detailed explanation of rationale to render it persuasive over the others. The mere fact that two VA examiners (a doctor and a physician's assistant) offered the same opinion does not enhance the probative value of the opinion absent a sufficiently detailed explanation of rationale. As the same rationale is used for all the opinions, the opinions are in equipoise. In light of the foregoing, the Board concludes that all the factual and legal requirements for establishing secondary service connection for hypertension are met, and that service connection for hypertension as secondary to service-connected diabetes is warranted. ORDER Service connection for PTSD is granted. The application to reopen a claim of service connection for hypertension is granted; to this extent only the appeal is granted. Service connection for hypertension as secondary to service-connected diabetes mellitus is granted. The application to reopen a claim of service connection for sleep apnea is granted; to this extent only the appeal is granted. REMAND Regarding an increased rating for bilateral hearing loss and service connection for sleep apnea on de novo review, while the notice provisions of the VCAA appear to be satisfied the Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims. See 38 C.F.R. § 3.159. At the June 2011 Travel Board hearing the Veteran testified that his hearing loss had "gotten worse" since his last VA examination. As the Veteran's most recent VA audiological evaluation to assess bilateral hearing loss was in August 2010, and since he alleges an increase in severity in the interim, a contemporaneous examination to determine the current severity of the disability is necessary. At the June 2011 Travel Board hearing, the Veteran testified that he went to a clinic for sleep apnea. A July 2007 VA outpatient treatment record notes that the Veteran was diagnosed with sleep apnea in 2007 and a study at Providence Hospital was recommended. As outstanding treatment records have been identified in connection with the Veteran's claim to reopen and may contain pertinent information, they must be secured and considered on de novo review. Accordingly, the case is REMANDED for the following: 1. The RO/AMC should secure for the record copies of complete clinical records of all VA treatment the Veteran has received for hearing loss and sleep apnea from November 2010 to the present. 2. Upon completion of the above, the RO/AMC should then arrange for the Veteran to be afforded an audiological evaluation (with audiometric studies) to determine the current severity of his bilateral hearing loss. 3. Thereafter, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ T. Mainelli Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs