Citation Nr: 1301740 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-24 276 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for the service-connected hypertension. 2. Whether new and material evidence has been received to reopen the previously denied claim of service connection for an innocently acquired psychiatric disorder, claimed as schizophrenia. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from August 1971 to March 1972. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The reopened claim of service connection for an acquired psychiatric disorder is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The service-connected hypertension is shown to be manifested by diastolic blood pressure readings which are predominantly less than 110 and systolic pressure readings which are predominantly less than 200. 2. In an unappealed November 2006 decision, the Board denied the Veteran's claim of service connection for an innocently acquired psychiatric disorder, to include schizophrenia, residual type. 3. The evidence received since the November 2006 Board decision is new, relates to an unestablished fact necessary to prove the claim, and raises a reasonable possibility of substantiating the claim of service connection for an innocently acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for the assignment of an increased rating higher than 10 percent for the service-connected hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104 including Diagnostic Code 7101 (2012). 2. New and material evidence has been received to reopen the claim of service connection for an innocently acquired psychiatric disorder. 38 U.S.C.A. §§ 5107, 5108, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Indeed, in Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issues adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to these claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess, supra. In the present case, VA issued a VCAA notice letter to the Veteran in February 2008, prior to the initial adjudication of his claim. This letter informed the Veteran of what evidence was required to substantiate his increased rating claim and of his and VA's respective duties for obtaining evidence. The February 2008 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. Thus, with the record indicates that the Veteran received appropriate notice pursuant to VCAA respect to his increased rating claim. With respect to the Veteran's new and material claim, the Board need not address the adequacy of the February 2008 notification letter, or whether VA has met its duty to assist the Veteran in the development of his new and material claim. This is so because, as will be discussed in further detail in the following decision, the Board finds that the evidence received since the November 2006 final denial is new and material and the Board is granting the Veteran's claim to reopen. As this portion of the Veteran's appeal is being allowed, there can be no prejudice to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (finding that further development would serve no useful purpose and would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claims, and that there is no reasonable possibility that further assistance would aid in substantiating such claims. In particular, the record contains the Veteran's service treatment records, VA outpatient medical records, a VA examination report, and the Veteran's records from the Social Security Administration. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also 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. As the Board will discuss in its analysis, the Veteran was provided with a VA examination in March 2008. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered appropriate diagnoses consistent with the remainder of the evidence of record, and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the record does not reflect that the March 2008 examiner reviewed the Veteran's claims folder, the Veteran is not prejudiced thereby as the examiner considered medical history as reported by the Veteran which is consistent with that contained in the Veteran's claims folder. The Board therefore concludes that the examination is adequate for rating purposes. See 38 C.F.R. § 4.2 (2012). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined to exercise his option of a personal hearing. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. The Increased Rating Claim Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 7101 [hypertensive vascular disease (hypertension and isolated systolic hypertension)] provides for a 60 percent rating for diastolic pressure predominantly 130 or more and a 40 percent disability rating for diastolic pressure predominantly 120 or more. A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Diagnostic Code 7101 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the diagnosed disability in the Veteran's case (hypertension). The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate and the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7101. The service-connected hypertension is currently evaluated as 10 percent disabling under Diagnostic Code 7101. As noted, to obtain the next higher rating, 20 percent, diastolic blood pressure reading must be predominantly 110 or more, or systolic pressure must be predominantly 200 or more. The Veteran filed his claim for an increased disability rating for his service-connected hypertension in February 2008. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The March 2008 VA examiner reviewed a Computerized Patient Record System (CPRS) graph of all of the Veteran's blood pressure readings from July 2002 to the present and found them to be "normal." Upon review, this graph shows that the Veteran's diastolic pressure was not more than 106 and his systolic pressure was not more than 151. During the examination, the Veteran also reported that, in monitoring his blood pressure at home, his results were normal. All of the blood pressure readings taken during the appeal period have fallen well short of the 110 diastolic measurement or the 200 systolic measurement specified in the ratings criteria. Specifically, the medical records associated with the Veteran's claims file include nine individual blood pressure readings during the period in question. Of these, not one reflects a diastolic reading of 110 or more and there are no readings describing a diastolic pressure of 200 or more. As the Veteran's diastolic blood pressure has not been measured at 110 or more, and his systolic pressure has not been measured of 200 or more, the blood pressure readings do not meet the criteria for a higher rating, as required by the rating schedule. Accordingly, as the criteria for a disability rating in excess of 10 percent for the service-connected hypertension have not been met, there is no basis for awarding a disability rating in excess of the currently assigned 10 percent rating. Under Floyd v. Brown, 9 Vet.App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet.App. 225, 229 (1993). Under Thun v. Peake, 22 Vet.App, 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected hypertension. The medical evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In fact, the symptomatology of the Veteran's disability includes elevated blood pressure which is specifically contemplated under the appropriate ratings criteria. Accordingly, the Board finds that the Veteran's disability picture has been contemplated by the rating schedule. Since the available schedular evaluation adequately contemplates the Veteran's level of disability and symptomatology, the second and third questions posed by Thun become moot. The Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Lastly, the Court has held that a request for a total rating based upon individual unemployability (TDIU), whether expressly raised by Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet.App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a service-connected disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU rating is warranted as a result of that disability. Id. In this case, the evidence does not show that the Veteran's hypertension has caused unemployability. During the March 2008 VA examination, the examiner stated that the Veteran's hypertension did not have any effect on his usual daily activities. It was further noted that the Veteran's blood pressure was controlled with medication and has been "normal." It was noted that there were no side effects to this treatment. Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). II. The New and Material Claim In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a) (2012). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) competent and credible 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) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet.App. 1, 8 (1999). The Veteran was initially denied service connection for a nervous condition in an October 1977 rating decision. The Veteran perfected an appeal of this decision and his claim was denied by the Board in June 1979. He was notified of this decision in a June 1979 letter. Thereafter, in October 2002, the Veteran petitioned to reopen his previously denied claim of service connection for a nervous condition. The RO reopened and denied the Veteran's claim in a January 2003 rating decision. (In the January 2003 rating decision, the RO characterized the Veteran's claim as service connection for schizophrenia, residual type.) The Veteran perfected an appeal of this decision and, in December 2004, the Board reopened his claim and remanded the issue for additional development of the record. The Veteran's claim was denied by the Board on the merits in a November 2006 decision. When the Veteran's claim of service connection for an innocently acquired psychiatric disability was denied by the Board in November 2006, the record contained the Veteran's service treatment records, VA and private medical records, and records from the Social Security Administration. Based on this evidence, the November 2006 decision denied service connection for an innocently acquired psychiatric disorder, to include schizophrenia, residual type. The basis of this decision was that there was no evidence that the currently diagnosed schizophrenia was present in service, manifested within one year after separation, or was otherwise casually related to active service. As explained, the Veteran's claim for service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board's inquiry will be directed to the question of whether any additionally submitted (i.e., since November 2006) raises a reasonable possibility of substantiating the Veteran's claim. As noted, the Board denied the claim of service connection for a psychiatric disorder because while the Veteran was diagnosed with a personality disorder during service, the "service treatment records did not demonstrate in-service incurrence of an acquired psychiatric disability." See the November 2006 decision, page 11. The evidence associated with the Veteran's claims folder since the November 2006 decision includes the Veteran's lay statements, the VA treatment records, copies of the Veteran's service treatment records and translated requests for examinations from the Social Security Administration. In his February 2008 statement, the Veteran reported being treated for maniacal behavior during service and diagnosed with a passive aggressive personality. He reported seeking treatment after his discharge, but being turned away because his service records stated that he had a personality disorder. The Veteran also reported that he was unable to receive treatment until his diagnosis was changed to schizophrenia. This evidence is "new" in that it was not of record at the time of the November 2006 denial. The evidence is also "material" because it relates to an unestablished fact necessary to substantiate the claim, namely, that the in-service diagnosis of a personality disorder was incorrect and the Veteran has continued to experience the same symptoms he had during service, until he was diagnosed with schizophrenia. See Shade v. Shinseki, 24 Vet.App. 110, 121 (2010) (regulations do not require new and material evidence as to each previously unproven element of a claim). Inasmuch as the record indicates that the Veteran has been diagnosed with a psychiatric disorder, and has submitted lay evidence indicating that he continued to experience psychiatric problems since separating from service, and that his diagnosis was changed from a personality disorder to schizophrenia, the Board finds that the new evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence sufficient to reopen the previously denied claim of service connection for an innocently acquired psychiatric disorder has been received. ORDER An increased rating in excess of 10 percent for the service-connected hypertension is denied. As new and material evidence has been received to reopen the previously denied claim of service connection for an innocently acquired psychiatric disorder, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND There is now of record evidence, in the form the Veteran's lay statements, which raise a reasonable possibility of substantiating his claim of service connection for an innocently acquired psychiatric disorder. This evidence, while sufficient to reopen the claim, is not sufficient to allow the claim. Specifically, the Veteran has stated that he sought treatment for a psychiatric disorder following his separation from service, and suggested that the schizophrenia that was diagnosed after his separation from service was a continuation of his in-service symptomatology. The record currently includes a December 2002 VA examination report which found that the Veteran "started psychiatric treatment in 1977 and that the onset of his mental disorder was in that year." The examiner did not, however, comment on the Veteran's complaints of ongoing symptomatology that began during service, to include whether these symptoms were a continuation of the diagnosed personality disorder, or were instead symptoms of his later diagnosed schizophrenia. The examiner also did not address the October 2002 statement from R.A.C., M.D. who reported that the Veteran's psychiatric disorder that began during service. Based on this evidentiary posture, the Board finds that the issue of service connection for an innocently acquired psychiatric disorder contains medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet.App. 191, 175 (1999). These questions concern the nature of the Veteran's psychiatric disorder and whether such a disorder had its clinical onset in service or is otherwise related to active duty. These questions must be addressed by an appropriately qualified medical professional. A medical examination is therefore necessary. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012). Accordingly, the reopened claim of service connection for an innocently acquired psychiatric disorder is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for the claimed psychiatric disorder. The RO should take all indicated action to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. All attempts to locate and obtain these records should be documented in the Veteran's claims folder in accordance with procedures set forth in 38 C.F.R. § 3.159(e). 2. Then, the RO should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed innocently acquired psychiatric disorder. The Veteran's claims file, including a copy of this remand, must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. After reviewing the entire record and examining the Veteran, the VA examiner should provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that an innocently acquired psychiatric had its clinical onset in service during his period of active duty. The examiner should specifically comment on the October 2002 medical opinion by Dr. R.A.C. and address whether the findings noted in connection with the Veteran's multiple psychiatric diagnoses noted in 1977 represented a continuation of the symptoms beginning during service. A complete rationale for all opinions expressed should be provided. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs