Citation Nr: 1302248 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-04 168A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension, to include as secondary to service-connected diabetes and ischemic heart disease. REPRESENTATION Appellant represented by: Vermont Veterans Affairs Section, Military Department WITNESSES AT HEARING ON APPEAL Veteran, Veteran's spouse ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Navy from August 1970 to August 1972, to include duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. The Veteran appeared at a Travel Board hearing in July 2011. A transcript is associated with the claims file. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Evidence received since the last final decision of record, which denied service connection for a low back disability, relates specifically to an unestablished fact necessary to substantiate the claim. 2. Evidence received since the last final decision of record, which denied service connection for hypertension, relates specifically to an unestablished fact necessary to substantiate the claim. 3. The Veteran experienced a low back injury in 1970 while on active duty, and he has had continual symptoms of pain, requiring treatment, since that time; the Veteran's current low back strain with degenerative change, which causes the chronic pain, had causal origins in service. CONCLUSIONS OF LAW 1. New and material having been received, the claim for service connection for a low back disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. New and material having been received, the claim for service connection for hypertension is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Service connection for a low back disability is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the appellant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. § 3.159(b) (2012). Information means non-evidentiary facts, such as the claimant's address and Social Security number or the name and address of a medical care provider who may have evidence pertinent to the claim. See 66 Fed. Reg. 45620, 45,630 (August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2012). Second, VA has a duty to assist the appellant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claims of entitlement to service connection for a low back disability and hypertension. Further, there is sufficient evidence to grant the claim for entitlement to service connection for a low back disability on the merits. The claim on the merits for entitlement to service connection for hypertension requires additional development, which is addressed in the remand below. Therefore, no further development is needed with respect to the aspect of the appeal decided herein. Legal Criteria-New and Material Evidence In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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). In determining whether evidence is new and material, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Legal Criteria-Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disorders, such as arthritis, will be presumed to have been incurred in service if manifesting to a compensable degree within the first post-service year. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Analysis-New and Material Evidence The Veteran in this case was initially denied service connection for a low back disability in May 1976, with a confirmation of that denial occurring in November 1976. Essentially, the RO determined at that time that there was not sufficient evidence to show a back injury in service, and that the Veteran experienced an acute low back strain several years after his discharge. The November 1976 rating decision confirmed this, and determined that there was no nexus between a current back condition and military service. The Veteran did not posit disagreement with the November 1976 determination, and no new evidence was received within a year of the decision. Additionally, at no time has the Veteran submitted additional service treatment records in association with this claim. Thus, the November 1976 decision is final. 38 C.F.R. § 3.156 (b), 3.156 (c) (2012). Subsequent to the initial determination, the Veteran has attempted to reopen his claim for entitlement to service connection for a back disorder on several occasions. In April 1990 and January 1994 rating decisions, it was determined that new and material evidence did not exist to reopen. The Veteran did not appeal either of these determinations, and he did not submit new evidence within the year following the issuance of these decisions. As noted, at no time has the Veteran submitted new service records in connection with his claim, and the 1990 and 1994 decisions are final. Id. Subsequent to the 1994 determination, the Veteran has yet again come forward in alleging that new and material evidence exists to reopen his claim for service connection. A February 2008 rating decision determined that no such evidence exists, and the Veteran has filed a timely disagreement with this determination. Regarding hypertension, the Veteran was denied service connection in January 2006 on the grounds that the evidence did not support a link between service-connected diabetes and current hypertension. No disagreement with the determination was entered, and no new evidence was filed within the year following the decision. Additionally, at no time were new service treatment records received in concert with this claim. Thus, the 2006 decision is a final determination. Id. The Veteran has come forth in alleging that new and material evidence exists to reopen this claim, and a February 2008 RO decision determined that while such evidence was of record, the claim on the merits could not be granted. As with the low back claim, a timely disagreement with this determination was filed, and it is from this decision that the appeal arises. With respect to the RO's determination that new and material evidence had been submitted to reopen a claim for entitlement to service connection for hypertension, the Board notes that it must make such a determination in its own right, regardless of the RO's determination, prior to addressing the underlying claim on the merits. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Essentially, the Board must look to the most recent final decisions of record, and must determine if evidence that is new and material to the claims has been received. That is, it must determine if there is evidence, received since January 1994, which is potentially supportive of a finding of a nexus between a low back disability and service. With regard to hypertension, the Board must look for evidence which potentially supports a causal or aggravating nexus between hypertension and a service-connected disability, to include diabetes, or evidence which would link the onset of hypertension to active service, that is of record subsequent to January 2006. With regard to the back, the Board notes that subsequent to the 1994 determination, the Veteran submitted a letter written to his wife while he was in service. The letter, dated in December 1970, was authored while the Veteran was in Vietnam. In it, the Veteran describes going to sick call and receiving pills for low back pain after falling from a piece of construction equipment (a wrecker). The Veteran reported that he was diagnosed with a sprain in his lower back muscles, and that he was given three days of rest before having to return to duty. This evidence is new, in that it was received in March 2007 and thus, was not of record at the time of the most recent final decision of record (1994). It is also material, in that it shows that the Veteran did, indeed, experience an injury in service for which some conservative care was prescribed. This raises a possibility of a nexus between this in-service injury and the documented low back complaints which occurred post-service, and thus, it relates to an unestablished fact which might raise a reasonable possibility of substantiating the claim for service connection. See 38 C.F.R. § 3.156. Accordingly, the claim is reopened. With respect to hypertension, subsequent to the January 2006 rating decision, the Veteran submitted a letter of a private physician, dated in May 2007, in which the clinician describes the Veteran's insulin-resistant diabetes mellitus as something that was "leading" to hypertension. That is, while certainly not an unequivocal opinion, it was suggested that there was a causal relationship between diabetes and hypertension. Furthermore, the Veteran submitted private hospitalization records from 2007 which show a diagnosis of atherosclerotic heart disease for which stent emplacement was required. The Veteran was also granted service connection for ischemic heart disease in an April 2011 rating decision. This evidence is new, in that it was not of record at the time of the initial 2006 denial, and it is material, in that, at the very least, it suggests a causal relationship between diabetes and hypertension and raises the issue of a nexus between hypertension and ischemic heart disease. These were unestablished facts at the time of the last, final denial, and accordingly, the claim is reopened. See 38 C.F.R. § 3.156. Analysis-Service Connection/Low Back The Veteran's service treatment records are silent for complaints of low back pain. As noted, however, in the above section which reopens this claim, there is contemporaneous evidence of a low back injury occurring during service. Indeed, the Veteran wrote home in December 1970 that he had experienced a fall from a wrecker, and that he had been assessed as having sprained the muscles in his back. Some sort of medicine was prescribed, and he reported being placed on a limited duty status for a three-day period. A lay statement of another Veteran, dated in September 1976, confirms that the Veteran did injure his back on a fall from a wrecker in Vietnam. In August 1976, the Veteran was seen by VA for complaints of low back pain. In a clinical note, nerve root impingement and facet overriding was assessed as "probably" being present. The treating physician described the condition as likely being related to obesity; however, it was noted that there "may" be some relationship to an initial injury in 1971. According to the Veteran's letter, he injured himself in December 1970, which is proximate to 1971 and thus does not pose any concerns as to the credibility of testimony. In December 1977, the Veteran again had treatment for back complaints. Radiographic testing was completed at this time, and in addition to scoliosis, lateral wedging of T7 was noted. It was opined that this wedging was "probably" due to scoliosis or a previous trauma. In April 1990, the Veteran's private physician wrote a letter documenting that the Veteran had complaints of back pain over the last twenty years, and that the pain had become progressively worse over time. It was noted that a current diagnosis of sacroiliitis was present, and with regard to etiology, the examiner noted that an in-service fall occurred, and that back symptoms have progressed since that time. The Veteran was afforded a VA examination in October 2009, and he was diagnosed with chronic low back strain with degenerative change. The examiner noted the 1970 complaint of back pain; however, as there was no medical record of that trauma, he stated that he could not resolve the issue of etiology without resort to speculation. A negative nexus opinion was not entered. The Board notes that the evidence clearly establishes that the Veteran experienced an injury to his back in December 1970. Clinical records from approximately four years after service discharge document complaints of back pain, and a 1990 physician's letter explained that the Veteran has had progressively worse back pain since the 1970 injury. The 1976 VA clinical note, done in the context of treatment and thus highly probative, noted a potential link to the in-service injury, and the 1977 X-ray report noted that the type of pathology shown by radiographic study was "probably" related to a previous trauma or to scoliosis. In taking that radiographic evidence in the light most favorable to the Veteran, the Board can conclude that it is supportive of the contention that a chronic low back disability developed as a result of an in-service trauma. Essentially, it is established that the Veteran sought treatment for low back complaints in a period fairly proximate to his service discharge. He has a current low back disability, and has historically, in the context of treatment, had his low back symptoms linked to previous in-service trauma. The Veteran and the other lay witnesses in this case are credible, and the Veteran is competent to report the symptoms of back pain which he can perceive through his senses. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is no reason to doubt that the Veteran has had complaints of back pain since experiencing an injury in 1970. Accordingly, there is, at the very least, evidence of a continuity of symptomatology of back pain from service to the present, and there is no evidence of record which is against the grant of service connection. Thus, the evidence is, at the very least, in relative equipoise regarding the Veteran's contention, and the claim for service connection will be granted. (CONTINUED ON THE NEXT PAGE) ORDER New and material evidence having been received, the claim for entitlement to service connection for a low back disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for hypertension is reopened; to that extent only, the appeal is granted. Entitlement to service connection for a low back disability is granted. REMAND The Veteran has asserted that his service-connected diabetes has caused, or alternatively, aggravated beyond the natural course of the disease process, current hypertension. The Veteran was initially afforded a VA examination in January 2006, and the examining physician's assistant (PA) determined that it was not at least as likely as not that the Veteran's diabetes caused his hypertension. As a rationale, the examiner explained that there was a lack of proteinuria upon urinalysis, normal blood urea nitrogen (BUN), and that the Veteran's body habitus was 69.5 inches in height and 316 pounds in weight. The examiner stated that the lack of renal failure requiring dialysis and the Veteran's obesity made it "less likely as not" that diabetes caused hypertension. In support of his claim, the Veteran has submitted a statement from his private physician, dated in May 2007, which expressed "little doubt" that there was a nexus between diabetes and hypertension. There is no rationale associated with this opinion, as the physician merely stated that the Veteran had a metabolic syndrome (insulin resistence leading to type 2 diabetes) "leading" to hypertension. The Veteran was afforded a second VA examination in October 2009, in which the examiner stated that while "literature consistently states that hypertension is strongly associated with diabetes, there still remains no conclusive consensus in the scientific community that hypertension is directly caused by diabetes." The examiner concluded that the Veteran's hypertension was not "directly and conclusively" caused by his service-connected diabetes. The VA examinations of record are problematic on two accounts. With regard to the 2006 opinion, while a rationale was associated with the etiology opinion, the focus of that opinion was solely on causation. That is, the 2006 examiner did not address whether the Veteran's service-connected diabetes could have aggravated the hypertension beyond the normal progression of the disease process. With regard to the 2009 opinion, while aggravation was also not addressed, the opinion utilized the wrong evidentiary standard in making a conclusion. That is, the examiner, while making vague mention of support for the Veteran's contentions in medical literature, determined that the evidence did not "directly and conclusively" support a finding that diabetes caused the Veteran's hypertension. The requirement for service connection is that the evidence be in relative equipoise, and thus, the failure of the medical literature to support the contended relationship "directly and conclusively" is not pertinent. Furthermore, the Board notes that subsequent to the initial denial of the Veteran's claim, stenting was required in the coronary arteries in 2007. The Veteran has been awarded service connection for ischemic heart disease, and this action raises a new theory of entitlement to service connection for hypertension. That is, as hypertension is a vascular disorder, and as the Veteran's ischemic heart disease, post-stenting, is a cardiovascular condition, there is a similarity in the anatomical systems affected by a service-connected condition and the claimed condition. Based on this, the claim is raised as to if the Veteran's current hypertension was caused or aggravated beyond the natural course of the disease process by service-connected ischemic heart disease. Based on the deficiencies noted in the 2006 and 2009 medical opinions, and based on the claims raised by the record with the award of service connection for ischemic heart disease, the Veteran should be afforded a new, comprehensive opinion for the purposes of determining the etiology of his hypertension. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the VA examiner may determine if a clinical examination is necessary or, alternatively, if an opinion on etiology may be entered solely based on a review of the record. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA records relating to the Veteran's hypertension for treatment received from March 2011 to the present from the VA Medical Center in White River Junction. Associate those records with the claims file. 2. Provide a medical opinion, either by examination of the Veteran or solely by a review of the claims file (the determination to be made based on the judgment of the examiner), as to if it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected diabetes or ischemic heart disease caused, or aggravated beyond the natural course of the disease process, current hypertension. A rationale must be associated with any conclusions reached in the opinion. Unsupported conclusions are not helpful, and may require additional remand for remedial compliance. 3. Following the directed development, the RO must conduct a de novo review of the claim for service connection on the merits. Should the claim be denied, issue an appropriate statement of the case to the Veteran and his representative and return the claim to the Board for adjudication. 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. 2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs