Citation Nr: 1304715	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  99-12 883	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for hypertension to include as secondary to service-connected major depressive disorder, migraine headaches, and seizure disorder.

2.  Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for right hip disability.

3.  Entitlement to an effective date prior to September 18, 2002 for the grant of service connection for seizure disorder.

4.  Entitlement to an effective date prior to February 2, 1998 for the grant of service connection for major depressive disorder with anxiety and panic disorder.

5.  Entitlement to an initial disability rating for service-connected seizure disorder, currently evaluated as 20 percent disabling.

6.  Entitlement to an initial disability rating for service-connected major depressive disorder with anxiety and panic disorder, currently evaluated as 70 percent disabling.

7.  Entitlement to service connection for low back disability.


REPRESENTATION

Veteran represented by:	John F. Cameron, Esq.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active military duty from July 1974 to July 1977.  In addition, he had subsequent reserve service.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated December 1998, July 2008, and May 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In September 1999, the Veteran presented sworn testimony during a formal RO hearing in Montgomery, Alabama.  A transcript of the hearing has been associated with the Veteran's VA claims file.

With respect to the hypertension claim, the Board denied the Veteran's claim of entitlement to service connection for hypertension in an August 2004 decision.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court) which, in a February 2007 Memorandum Decision, vacated and remanded the matter to the Board.  In an April 2008 Board decision, the claim was remanded for further evidentiary development.  The RO continued the previous denial in a September 2011 supplemental statement of the case (SSOC).

In May 2012, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a).  The requested opinion has been provided and has been associated with the VA claims file.  The VHA opinion has been provided to the Veteran and his attorney.  The Veteran was afforded 60 days to provide additional argument or evidence.  The Veteran and his attorney were subsequently granted an additional 60-day period of time to respond until December 3, 2012.

With respect to the new and material evidence claim, the August 2004 Board decision also denied the Veteran's claim of entitlement to service connection for a right hip disability.  The Court affirmed the Board's decision with respect to the right hip disability claim in the February 2007 Memorandum Decision.

In April 2007, the Veteran filed to reopen the previously denied right hip disability claim as well as an original claim of entitlement to service connection for low back disability.  These claims were denied in a July 2008 rating decision.  The Veteran disagreed with the denials and perfected his appeals in December 2009.

As to the initial rating and earlier effective date claims, the Veteran was granted service connection for a seizure disorder in a May 2009 rating decision; a 10 percent disability rating was assigned from September 18, 2002.  The May 2009 rating decision also granted service connection for major depressive disorder with migraine headaches and assigned a 30 percent disability rating; effective February 2, 1998.  In February 2010, the Veteran expressly disagreed with the disability ratings and effective dates assigned.  In a May 2011 rating decision, the RO increased the evaluation as to the service-connected seizure disorder to 20 percent.  The May 2011 rating decision also granted a separate disability rating for service-connected migraine headaches and increased the disability rating assigned to the service-connected major depressive disorder to 70 percent.  A SOC was issued in May 2011, which addressed the issues of increased initial ratings for service-connected seizure disorder and major depressive disorder with anxiety and panic disorder, as well as, the claims of entitlement to earlier effective dates for the grants of service connection for the seizure disorder and major depressive disorder.  The Veteran perfected his appeal by filing a timely VA Form 9 in July 2011.  As he has not expressed satisfaction with the initial disability ratings, these issues thus remains in appellate status.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated).

The issues of entitlement to service connection for low back disability and entitlement to increased initial disability ratings for service-connected seizure disorder, and major depressive disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO.  The Veteran will be notified if further action on his part is required.



FINDINGS OF FACT

1.  Hypertension was not manifested in service or until years later and is not otherwise attributable to the Veteran's active service.

2.  Hypertension is not caused or aggravated by the service-connected major depressive disorder with anxiety and/or the chronic pain from his service-connected disabilities to include migraine headaches and seizure disorder.

3.  In an August 2004 decision, the Board denied the Veteran's claim of entitlement to service connection for a right hip disability.  The Board's denial was affirmed in a February 2007 Memorandum Decision issued by the Court.

4.  The evidence submitted since the August 2004 Board decision is cumulative and redundant of the record at the time of the prior final denial of service connection for right hip disability, and does not raise a reasonable possibility of substantiating the claim.

5.  In a December 1998 rating decision, the RO denied service connection for depression.  This issue originated from an original claim of service connection received on February 2, 1998.

6.  The Veteran did not file a claim of entitlement to service connection for depression prior to February 2, 1998.

7.  On October 9, 2001, the Veteran filed a communication expressing an application for service connection for seizure disorder.

8.  The Veteran did not file a claim of entitlement to service connection for seizure disorder prior to October 9, 2001.



CONCLUSIONS OF LAW

1.  Hypertension was not incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  Hypertension is not proximately due to, or aggravated by, the Veteran's service-connected disabilities.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5017 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310(a) (2012).

3.  An August 2004 Board decision denying the claim of entitlement to service connection for right hip disability is final.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012).

4.  Since the August 2004 Board decision, new and material evidence has not been received with respect to the claim of entitlement to service connection for right hip disability; this claim is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).

5.  The criteria for an effective date prior to February 2, 1998 for service connection for major depressive disorder with anxiety and panic disorder have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(q),(r) (2012).

6.  The criteria for an effective date of October 9, 2001, but no earlier, for service connection for seizure disorder have been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(q),(r) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA notice must inform the claimant of any information and 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

As to the hypertension claim, letters dated in June 2001 and June 2003 as well as the March 1999 SOC and SSOCs dated in June 1999, June 2000, October 2003, and September 2011 complied with VA's duty to notify the Veteran with regard to this service connection claim.  Specifically, the Veteran was apprised of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  Moreover, the Veteran is represented by an attorney who is clearly familiar with the case and is obviously aware of the kinds of evidence needed to substantiate the Veteran's hypertension claim.  The Veteran's attorney undoubtedly understood the evidence required to sustain hypertension claim, as is demonstrated by October 2005 Appellant's Brief and January 2006 Appellant's Reply Brief, in addition to other communications in which the Veteran's attorney raised specific arguments addressing the elements of direct and secondary service connection.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (holding that an appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error").

With respect to the right hip disability claim, a pre-decisional notice letter in May 2008 complied with VA's duty to notify the Veteran with regard to this issue.  The letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, in the May 2008 letter, the RO informed the Veteran of its duty to assist him in substantiating his new and material claim under the VCAA, and the effect of this duty upon this issue.  This letter informed him of what constituted new and material evidence to reopen the previously denied, unappealed claim.  He was informed that evidence is new if it is submitted to the VA for the first time and that material evidence must pertain to the reason the claim was previously denied.  This correspondence also met the specificity required under Kent v. Nicholson, 20 Vet. App. 1 (2006), as the Veteran was advised of the exact reason for the previous denials and the evidence needed to reopen the claim for service connection.

As to the appeal of the effective dates assigned following the grant of service connection for major depressive disorder and seizure disorder, in cases, as here, where the claim arose in another context - namely, the Veteran trying to establish his entitlement to service connection, and this claim since has been granted, the claim as it arose in that initial context has been substantiated.  So additional VCAA notice is not required because the intended purpose of the notice has been served.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); and Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

VA's General Counsel similarly held that no additional VCAA notice is required in this circumstance, for a downstream issue.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  The Board is bound by the General Counsel's opinion, as the Chief Legal Officer of the Department.  38 U.S.C.A. § 7104(c).  Instead of issuing an additional VCAA notice letter in this situation concerning the downstream earlier-effective-date claims, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved.  And since the RO issued an SOC in May 2011 addressing the downstream effective-date claims, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning earlier effective dates, no further notice is required.  See also Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003).

Consequently, the Board finds that all necessary development of the downstream effective-date claims has been accomplished, and therefore appellate review of these claims may proceed without prejudicing the Veteran.  Moreover, as will be explained, resolution of these claims ultimately turns on when he filed the claims, so an examination and opinion (even one in retrospect) are not needed to fairly decide them.  38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C).  See also Chotta v. Peake, 22 Vet. App. 80, 85 (2009).

Regarding VA's duty to assist as to the other claims on appeal, the RO obtained the Veteran's service treatment records (STRs), service personnel records, Social Security Administration (SSA) records, as well as VA and private treatment records in furtherance of his claims.

There is no indication that any additional action is needed to comply with the duty to assist.  The Veteran was afforded VA examinations in June 2011 and March 2003 as to his hypertension claim.  Also, as indicated above, a VHA opinion was obtained in August 2012.  The medical opinion reflects that the VA examiners and VHA reviewer thoroughly reviewed the Veteran's past medical history, documented his medical conditions, and rendered opinions which appear to be consistent with the remainder of the evidence of record.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  The Board therefore concludes that the VHA opinion and VA examination reports are adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  Thus, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet.

II.  Service connection for hypertension

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  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 service, 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).

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (1995).

Service connection may also be granted on a presumptive basis for certain chronic disabilities, including hypertension, when manifested to a compensable degree within the initial post-service year.  See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability.  See 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Here, the Veteran has asserted entitlement to service connection for hypertension, which he contends is due to his military service.  He alternatively argues that his hypertension is aggravated by his service-connected major depressive disorder with anxiety and/or the chronic pain caused by his service-connected migraine headaches and seizure disorder.  See, e.g., the letter from the Veteran's attorney dated November 2007.  As to the Veteran's contention of secondary service-connection, it is undisputed that he is now service-connected for major depressive disorder with anxiety and panic disorder, migraine headaches, and seizure disorder.  See the May 2011 rating decision.

STRs from the Veteran's period of active military duty are negative for complaints of or treatment for hypertension.  At the June 1977 separation examination, the Veteran denied ever having experienced high or low blood pressure.  In particular, this examination demonstrated that his heart was normal and that he had a blood pressure reading of 120/74 mm/Hg in the sitting position.

A review of the STRs from the Veteran's subsequent reserve duty shows that he was found to have a blood pressure reading of 122/96 in the sitting position at an April 1986 periodic examination.  One week later, he underwent further evaluation of his blood pressure over a three-day period.  Blood pressure readings taken twice a day on each of three days were as follows:  124/84, 118/80, 122/86, 108/64, 112/70, and 110/70.  The examiner concluded that the Veteran did not meet the criteria for a diagnosis of hypertension.  During subsequent reserve training in July 1996, the Veteran sought treatment for complaints of lightheadedness.  To this end, he requested checks on his blood pressure and glucose levels.  At the July 1996 treatment session, his blood pressure was determined to be 138/74.

A private treatment record dated in June 1997 reflected blood pressure readings of 140/84 and 140/100.  A private treatment record dated the following month noted that the Veteran had no history of hypertension.  Blood pressure readings of 160/90 and 130/90 were indicated in July 1997 as well as a reading of 142/76 in August 1997.

A VA outpatient treatment record dated in February 1998 documented a diagnosis of mild hypertension.  A June 1998 VA treatment record noted that the Veteran's hypertension is well-controlled.  Additional VA treatment records dated between August 1998 and March 2002 indicated periodic follow-up treatment for hypertension.

The Veteran was afforded a VA examination in March 2002 at which time he reported having had hypertension for the past four or five years.  He described a family history of hypertension from his mother.  He further reported a history of smoking cigarettes (up to one pack per day) for the past several years.  The examiner noted that the Veteran's post-service treatment records indicated that he is taking medication for his hypertension.  The following blood pressure readings were taken at the VA examination:  172/106 (sitting position), 178/112 (lying position), and 185/109 (standing position).  The examiner confirmed the diagnosis of hypertension and noted that the Veteran's blood pressure readings remained high despite the medication that he was taking for this condition.  The examiner acknowledged that, although he reviewed the Veteran's VA claims file, he was unable to review his STRs.  However, the examiner did opine that the Veteran's hypertension is not the result of the 1996 in-service fall or his reported right hip injury.  The examiner did believe that the Veteran's psychiatric problems (described as depression and anxiety) "may have contributed to his hypertension and [that] it is as likely as not that his depression has been an aggravating factor for his hypertension."

The Veteran was afforded a subsequent VA examination in March 2003.  At that time, he reported that he was diagnosed with hypertension in 1996 and described persistent symptoms of headaches and dizziness.  The examiner, who noted that he had reviewed the Veteran's VA claims file, stated that the Veteran is currently taking medication for his hypertension and that his last few follow-up visits for this disorder reflected blood pressure readings which were within normal limits.  The examiner diagnosed the Veteran with controlled essential hypertension and expressed his opinion that this disorder "is not secondary to any other etiology."  The examiner further opined that "[t]he cause of essential...[hypertension] is unknown."
In support of his hypertension claim, the Veteran also submitted photocopies of a medical treatise which describes the impact psychological symptoms can have on high blood pressure to include hypertension.

In June 2011, the Veteran was afforded another VA examination as to his hypertension claim.  With respect to medical nexus, the June 2011 examiner stated that the Veteran's hypertension was not caused or aggravated by his service-connected psychiatric disability.  He indicated that there is no evidence to support causation or aggravation specifically due to a psychiatric disability, but instead noted that the Veteran had other risk factors that are associated with hypertension.  The examiner did not comment on the March 2002 examination and opinion or otherwise indicate why it was flawed.  He did note that the Veteran's chronic pain could cause fluctuations in his blood pressure, but did not address whether or not this pain was the result of the Veteran's service-connected migraine headaches or seizure disorder.

As indicated above, due to the conflicting medical evidence, a VHA medical opinion was obtained in August 2012 to address the questions of secondary service connection raised by the record.  The VHA reviewer thoroughly reviewed the claims file including the Veteran's complete medical history and noted special attention to tabbed reports and conflicting opinions.  She determined that "it is less likely as not that the Veteran's hypertension was aggravated (increased in severity beyond its natural progression) by the Veteran's service-connected psychiatric disability."  She explained, "[m]ental health records reviewed and notes from multiple visits reveal no consistent elevations in blood pressure related to visits for his mental health condition to include depression . . . More recent medical records reviewed demonstrate well-controlled blood pressures usually ranging in the 130s/80s during visits for both mental health, primary care, and neurology visits."  She continued, "[t]he only date where blood pressures were elevated out of the ordinary was on 3/11/02 when the Veteran reported for his [compensation and pension] exam and it is not stated whether Veteran took his medications for blood pressure prior to the visit or if he had just smoked a cigarette since he was noted to be a chronic heavy smoker.  He did not note any symptoms of headache or depression that visit and his blood pressures were 178/112, 172/106, and 185/109."
With respect to the relationship between the Veteran's hypertension and his chronic pain, the VHA reviewer found that it is less likely as not that the Veteran's hypertension was aggravated by pain produced from his other service-connected disabilities including migraine headaches and seizure disorder.  She explained that the Veteran's claims file was reviewed "and there is no evidence of record to support that the Veteran's blood pressure has fluctuated due to chronic pain.  Multiple notes including July 1997 emergency room note for chief complaint of headache and blood pressure was 120/78.  A clinic note from 9/2/97 notes that the Veteran smokes heavily, ha[d] a headache, and blood pressure was 120/78.  July 25, 1998 enlistment questionnaire notes that the Veteran 'denies headaches.'"  The VHA reviewer continued, "[s]ubsequent medical note for clinic visit on 1/21/99 with complaint of headache notes blood pressures of 123/81, 123/87, and 120/88.  December 17, 2001 note from medical clinic lists complaint of slight headache with blood pressure of 153/82.  April 9, 2001 clinic note states no headache and blood pressure was 140/80."

Crucially, the Veteran has not produced a medical opinion to contradict the conclusions set forth by the August 2012 VHA reviewer concerning the issue of secondary service connection.  With respect to the medical treatise evidence submitted by the Veteran, which discusses the impact of psychiatric symptomatology on blood pressure, this evidence is of little probative value as it is nonspecific to his case.  In contrast, the August 2012 VHA reviewer thoroughly considered the Veteran's medical history in rendering her medical nexus opinion.  As was explained in the VCAA section above, the Veteran has been afforded ample opportunity to present competent medical evidence in support of his hypertension claim.  He has not done so.  See 38 U.S.C.A. § 5107(a) (West 2002) (it is the claimant's responsibility to support a claim for VA benefits).  Thus, the August 2012 VHA medical opinion stands unchallenged as competent medical evidence on these crucial questions of medical nexus and aggravation.

The Veteran has submitted his own statements as well as third party lay statements to support his claim of service connection.  As lay persons, the Veteran and the multiple third parties are competent to testify to observable symptoms.  See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Barr, supra; Layno v. Brown, 6 Vet. App. 465 (1994).  However, neither the Veteran nor his friends and relatives are competent to provide medical conclusions as to whether a disability is due to his service-connected disabilities or his military service.  See Buchanan v. Nicholson, 451 F.3d 1331-37 (Fed. Cir. 2006); see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992).  Therefore, to the extent that the Veteran is now claiming that his hypertension is the result of his military service or is caused or aggravated by his service-connected disabilities, laypersons without medical training, such as the Veteran, his friends, and family are not competent to comment on medical matters.  See 38 C.F.R. § 3.159(a)(1) (2012).  To this end, the Board recognizes that one of the lay statements was written by Ms. L.S., who indicated that she is a licensed practical nurse.  Critically, however, to the extent that Ms. L.S. may be competent to comment on medical matters, she did not address the Veteran's contentions of continuity of symptomatology or medical nexus in her August 2009 statement.  The Board further observes that the Veteran's contentions in support of service connection including as to dependent and/or aggravated symptomatology are contradicted by the findings of the August 2012 VHA reviewer who specifically considered the Veteran's lay assertions and any such inferences contained in the record in rendering the negative nexus opinions.

To the extent that the Veteran is contending that his hypertension manifested during his military service and continued thereafter, the Board finds that he is competent and credible to report having certain observable symptoms such as elevated blood pressure since service.  Competent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses, that which is heard, felt, seen, smelled or tasted.  Layno, supra.  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker, supra; Layno at 469; see also Cartwright, supra.

In this regard, the Board recognizes that, at a periodic reserve examination conducted in April 1986, the Veteran was found to have an elevated blood pressure reading of 122/96 in the sitting position.  However, following further blood pressure evaluation completed one week later over a three-day period, the examiner concluded that the Veteran did not meet the criteria for a diagnosis of hypertension.  Elevated blood pressure readings were not then shown until June 1997 when, at a private medical session, the Veteran was found to have blood pressure readings of 160/90 and 130/90 in July 1997 as well as 142/76 in August 1997.  A VA outpatient treatment record dated in February 1998 provides the first diagnosis of hypertension.

Significantly, the claims file contains no competent evidence associating the Veteran's diagnosed hypertension with his service.  Moreover, the provisions concerning continuity of symptomatology do not relieve the requirement that there must be some evidence of a nexus to service.  For service connection to be established by continuity of symptomatology there must be medical evidence that relates a current condition to that symptomatology.  See Savage, supra.  Critically, with regard to the current appeal, the Veteran has simply contended that he has had symptoms of hypertension since service.  Such contentions alone do not support a grant of service connection for hypertension based on continuity of symptomatology.  No medical professional has opined that the Veteran's hypertension began in service or for years thereafter.  Thus, there is no medical evidence to support the Veteran's contentions of hypertension on a continuous basis following service.

Furthermore, the Veteran does not possess specialized medical education, training, and experience necessary to render competent medical opinion as to etiology of a disability.  Espiritu, supra.  In this case, there is nothing in his STRs and post-service records to indicate that he experienced hypertension during his military service or for years thereafter.

The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Thus, the Board is unable to identify a reasonable basis for granting service connection either on a direct or secondary basis.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).

Based on this evidentiary posture, especially the uncontradicted medical opinion evidence, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for hypertension.  The benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for hypertension is denied.  38 U.S.C.A §5107 (West 2002 & Supp. 2012).

III.  New and material evidence claim

In the current appeal, the Veteran contends that his right hip disability is the result of an injury sustained in service.  In this regard, review of the claims file shows that service connection for right hip disability was denied by the Board in a decision dated in August 2004, which was affirmed by the Court in a February 2007 Memorandum Decision.  The Board decision therefore became final as to this claim.  See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100.

Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed.  38 U.S.C.A. § 5108; 38 C.F.R. §§ 3.156(a), 20.1100, 20.1105.

Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication.  The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant.  See Barnett, supra.  Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted.  Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996).

For applications filed after August 29, 2001, as was the application to reopen the claim in this case, new evidence means 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 claims.  See 38 C.F.R. § 3.156(a) (2012).

According to the Court, the pertinent VA law requires that, in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis.  See Evans v. Browns, 9 Vet. App. 273 (1996).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  See Justus v. Principi, 3 Vet. App. 510 (1992).

Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (1995).

As previously noted, the Veteran's claim for service connection for right hip disability was last previously considered and denied in the August 2004 Board decision, which was affirmed by the Court in February 2007.  The evidence associated with the Veteran's claims file at the time of the August 2004 Board decision includes, but is not limited to, VA and private treatment records, VA examination reports, STRs, service personnel records, SSA records, lay statements including the Veteran's personal testimony, and his August 1998 claim.

At the time of the August 2004 Board decision, the Veteran's contentions of a current right hip disability, which was incurred during an in-service fall, were already of record.  Additionally, the Veteran's STRs showed that in July 1996, while on annual training, he sustained an injury to his right hip.  He sought treatment for complaints of right hip pain radiating down his right leg.  He stated that the injury occurred when he slipped on an "oil slick" and fell on his right hip.  He denied having lost any bowel or bladder function.  A physical examination demonstrated that the Veteran was neurovascularly intact.

Post-service VA treatment records dated in September 1999 showed that the Veteran sought outpatient treatment for complaints of chronic pain.  In particular, he described a burning sensation in his hips especially when walking.  He again sought VA treatment for complaints of right hip pain the following month.  See the VA treatment records dated October 1999.  X-rays taken in October 1999 revealed a mild degenerative bone spur at the superolateral aspect of the right femoral head, which the examining radiologist concluded was suggestive of degenerative bone changes.  In July 2000, the Veteran sought treatment at the VA Pain Clinic for complaints of right hip pain.  He was prescribed a transcutaneous electrical nerve stimulation (TENS) unit and hot pack for his right hip.

The Veteran was afforded a VA examination in March 2002, at which time, physical examination demonstrated some tenderness of the right hip posteriorly, moderate pain with flexion beyond 115 degrees, full range of flexion, complete abduction to 45 degrees, and a slight limp favoring the right hip.  Contemporaneous x-rays taken of the Veteran's right hip were normal.  The examiner diagnosed right hip pain with a past history of injury.  The examiner noted that, although he reviewed the Veteran's claims file, the record did not include his STRs.  Further, the examiner explained that the post-service records which were available "did not reveal any serious problems with the right hip itself."  Consequently, the examiner concluded that he was unable to express an opinion as to the etiology of the claimed right hip disability.

In March 2002 and June 2002, the Veteran sought VA treatment for complaints of right hip pain.  In June 2002, he reported that, while loading trucks during his military reserve duty between 1995 and 1996, he had slipped on some oil and hit his right hip.  The Veteran was not diagnosed with a right hip disability at either treatment session.

The Veteran was afforded another VA examination in March 2003 as to his right hip.  According to the examination report, the Veteran described intermittent right hip pain accompanied by tingling, numbness, and stiffness following the 1996 injury.  The examiner noted that he had reviewed the Veteran's claims file, which included October 1999 radiographic films showing a mild degenerative bone spur at the right femoral head as well as March 2002 x-rays showing a normal right hip.  X-rays taken contemporaneous with the March 2003 examination also showed a normal right hip.  The examiner diagnosed right hip strain with mild functional loss of range of motion due to pain.  With respect to medical nexus, the examiner concluded that "the Veteran's right hip strain is unlikely to be related to his active service injury."  The examiner explained that the evidence of record demonstrated that the in-service injury sustained to the Veteran's right hip (which involved only a contusion and no fracture or neurological impairment) had subsequently improved.  The examiner specifically stated that the Veteran's present right hip condition "is independent of that event."

Several times between April 2003 and September 2003, the Veteran sought VA medical care for complaints of right hip pain.  At one of the September 2003 treatment sessions, the Veteran reported having injured his right hip in a 1995 fall and further stated that he had experienced pain in this joint since that time.  The treating physician provided an impression of muscle strain.

As indicated above, the August 2004 Board denial of the Veteran's claim is final.  See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2012).  Accordingly, the Board's inquiry will be directed to the question of whether any additionally received evidence bears directly and substantially upon the specific matter under consideration.

After a thorough review of the entire record, and for the reasons expressed immediately below, the Board concludes that new and material evidence sufficient to reopen the claim of entitlement to service connection for right hip disability has not been submitted.

The evidence associated with the claims file subsequent to the August 2004 Board decision includes, but is not limited to, the Veteran's April 2007 claim to reopen; VA and private treatment records; and lay statements of the Veteran and third parties.

Medical evidence has been added to the record indicating that the Veteran suffers from a "chronic right hip strain."  See the VA examination report dated June 2009.  Additionally, the Veteran has submitted statements asserting that he injured his right hip during the in-service fall.  To the extent that the Veteran continues to assert that he has right hip disability due the documented July 1996 in-service injury, his repeated contentions are not new.  See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).  Further, this evidence cannot be considered "material" because is reiterative of the medical evidence already of record documenting a currently diagnosed right hip disability as well as the Veteran's contentions of in-service injury and continuing symptomatology.  Moreover, while the Board acknowledges that the Veteran is presumed credible for the purpose of determining whether new and material evidence has been submitted, the record does not indicate that he is competent to opine on complex medical questions such as the etiology of his right hip disability.

Moreover, the Board has considered the recent holding in Shade v. Shinseki, 24 Vet. App. 110 (2010).  In that decision, the Court held that, in determining whether evidence raises a reasonable possibility of substantiating a claim for purposes of reopening a claim, a Veteran's testimony regarding having experienced ongoing symptoms since service can be considered relevant as to the issue of nexus.  In reaching this conclusion, the Court reaffirmed the notion that a Veteran's testimony should not be rejected as not being material solely because he or she is a lay person, or because contemporaneous medical evidence is no longer available to corroborate it.  Id.  See also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009) & Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). 

However, as indicated above, in the current appeal the Veteran has not provided evidence or argument concerning nexus between his right hip disability and his military service, which was not reiterative of the evidence previously of record.  Accordingly, his contentions made during the current appeal may not be deemed to be material.  Shade, supra.

The Veteran has been accorded ample opportunity to submit new and material evidence but has failed to do so.  38 U.S.C.A. § 5107(a).  As the additionally received evidence does not tend to establish a nexus, it does not raise a reasonable possibility of substantiating the claim on the merits.  See 38 C.F.R. § 3.156 (2012).  The Board must therefore conclude that new and material evidence has not been received and that the Veteran's claim for service connection for right hip disability may not be reopened.  The benefit sought on remains denied.

IV.  Earlier effective date claims

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012).

The applicable statutory and regulatory provisions require that VA look to all communications from the Veteran which may be interpreted as applications or claims - formal and informal - for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  See 38 U.S.C.A. § 511(b)(2) (West 2002); 38 C.F.R. §§ 3.1(p), 3.155(a) (2012); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012).  The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1(p) (2012).
Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  See 38 C.F.R. § 3.155 (2012).

a. Major depressive disorder with anxiety and panic disorder

With respect to this issue, the Veteran contends that he is entitled to an effective date earlier than February 2, 1998, for the grant of service connection for major depressive disorder with anxiety and panic disorder.  Neither the Veteran nor his attorney has offered specific argument concerning this claim.

Here, the Veteran served on active duty from July 1974 to July 1977 with a subsequent period of reserve service.  On February 2, 1998, he filed an original claim of entitlement to service connection for hip disability and headaches, which the RO determined encompassed a claim of entitlement to service connection for depression.  This claim was denied in a December 1998 rating decision.

A review of the Veteran's STRs is pertinently absent for any complaint of or treatment for depression.  At the June 1977 separation examination, the Veteran denied ever having experienced frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, or periods of unconsciousness.  In particular, the examination indicated that the Veteran's psychiatric evaluation was normal.

A private psychological examination conducted in February 1998 resulted in the examiner's conclusion that the Veteran had no psychological disorder.  A VA treatment record dated November 1998 showed that the Veteran received treatment for depression.

In a December 1998 rating decision, the RO denied entitlement to service connection for depression.  The Veteran disagreed with the denial and perfected his appeal in May 1999.  His depression claim was denied in the August 2004 Board decision, which was vacated and remanded by the Court.  Following an April 2008 Board Remand, the RO eventually granted the Veteran's claim of entitlement to service connection for major depression with anxiety and panic disorder in rating decisions dated May 2009 and May 2011.  This appeal followed.

The RO has assigned an effective date of February 2, 1998 for the grant of service connection for major depressive disorder with anxiety and panic disorder.  As indicated above, that date was assigned based upon an original compensation claim.  The Veteran seeks an earlier effective date.

Based upon a review of the evidence, and for reasons expressed immediately below, the Board finds that the currently assigned effective date of February 2, 1998, is the earliest effective date assignable for the award of service connection for major depressive disorder.

As noted above, the assignment of an effective date for service connection is essentially governed by the date of filing with VA of a claim.  See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012).  The Board has reviewed the record and can identify no communication from the Veteran that may be considered to be a claim of entitlement to service connection for major depressive disorder or any other psychiatric disability prior to the date the claim was received (February 2, 1998).  See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits).

To the extent that the Veteran, through his attorney, is contending that his psychological symptomatology began during service and continued thereafter and, as such, service connection should be granted beginning the day following discharge, this amounts to an argument couched in equity.  The Board, however, is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress."  Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990).

The Board does not dispute that the Veteran experienced depression and other psychological symptomatology prior to the assigned effective date.  That he did was evidence that provided a basis for the grant of service connection.  However, the Board is obligated to apply the law as Congress has created it.  As explained above, the law does not support the assignment of an effective date prior to February 2, 1998.

In conclusion, for the reasons and bases set forth above, the Board finds that the effective date for the grant of service connection for major depressive disorder with anxiety and panic disorder is no earlier than the currently assigned date of February 2, 1998.  Accordingly, the benefit sought on appeal is denied.

b. Seizure disorder

With respect to this issue, the Veteran contends that he is entitled to an effective date earlier than September 18, 2002, for the grant of service connection for seizure disorder.  Specifically, the Veteran, through his attorney, contends that he is entitled to an effective date of February 2, 1998 or April 9, 2001.  See the Veteran's substantive appeal dated July 2011.

As indicated above, the Veteran filed an original claim of compensation for headaches and hip disability on February 2, 1998.  He contended that he suffered from headaches due to head trauma suffered from his July 1996 in-service fall.

STRs documented a fall in July 1996 during which the Veteran slipped on an oil slick and injured his hip and back during reserves annual training.  However, STRs did not document any seizure activity.

Private treatment records dated July 1997 indicated that the Veteran began to suffer from episodes of syncope with persistent headaches.  At that time, he was diagnosed with "syncope secondary to vasovagal reaction with severe vascular headache, also some muscle tension component."  See the private treatment records dated July 1997.

The Veteran submitted lay statements from fellow soldiers in May 1999 and September 1999 who indicated that they witnessed the Veteran hit his head during the July 1996 in-service fall.  See the statements of Mr. W.C.W. dated May 1999 and Mr. C.R.M. dated September 1999.

At a September 1999 RO hearing, the Veteran testified concerning his claim of entitlement to service connection for headaches.  He stated that he experienced blackouts.

In a February 2001 VA treatment record, the Veteran reported experiencing a syncopal episode that had occurred the week prior.  On April 9, 2001, a VA physician diagnosed the Veteran with seizure disorder status-post head trauma.

In statement received October 9, 2001, the Veteran indicated "I have an appeal pending for headaches, depression, hypertension, right hip injury, and seizure disorder."

In a March 2002 VA examination report, the examiner referred to the April 2001 diagnosis and opined, "[i]t should be noted head injury and trauma can cause post-traumatic headaches and seizure disorder.  Without the benefits of the service medical records and any such previous documentation, it is the opinion of the examiner that it is as least as likely as not that his headaches and seizure disorder are related to the history of injury from a fall..."

On September 18, 2002, the Veteran submitted a claim for service connection for seizure disorder.

A June 2003 rating decision denied the Veteran's claim of entitlement to service connection for seizure disorder.  He disagreed with the denial and a SOC was issued in September 2004.  The Veteran perfected his appeal by filing a timely VA Form 9 in November 2004.  Eventually, in a May 2009 rating decision, the RO granted service connection for seizure disorder and assigned a 10 percent disability rating effective September 18, 2002.  The initial rating was increased to 20 percent in a May 2011 rating decision, but the effective date was not disturbed.  This appeal follows.

As indicated above, the assignment of an effective date for service connection is essentially governed by the date of filing with VA of a claim.  See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012).  The applicable statutory and regulatory provisions require that VA look to all communications from the Veteran which may be interpreted as applications or claims - formal and informal - for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  See 38 U.S.C.A. § 511(b)(2) (West 2002); 38 C.F.R. §§ 3.1(p), 3.155(a) (2012); see also Servello, supra.

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  See 38 C.F.R. § 3.155 (2012).

Here, the Veteran, through his attorney, contends that the original February 2, 1998 claim of compensation for headaches also encompassed a claim of service connection for seizure disorder.  Critically, however, the Veteran did not assert entitlement to service connection for blackouts or syncopal episodes in the February 2, 1998 claim.  Moreover, the record demonstrates that he was not diagnosed with a specific seizure disorder until years later.  See, e.g., the VA treatment records dated February 2001.

In Brannon v. West, 12 Vet. App. 32 (1998), the Court observed that while VA must interpret a claimant's submissions broadly, it is not required to conjure up issues that were not raised by the claimant.  Accordingly, the February 1998 statement did not, therefore, constitute a claim of entitlement to service connection for seizure disorder.

The Veteran's attorney has alternatively asserted that an April 9, 2001 VA neurology treatment note should constitute an informal claim of entitlement to service connection for seizure disorder because the record purports to link the Veteran's diagnosed seizure disorder with in-service head trauma.  See the Veteran's substantive appeal dated July 2011.  The Board has considered whether this VA treatment record notation may be considered to be an informal claim for benefits under 38 C.F.R. § 3.157; however, 38 C.F.R. § 3.157 does not avail the Veteran.  Under § 3.157(a), a report of examination or hospitalization may be accepted as an informal claim for benefits if it meets the requirements of § 3.157(b).  38 C.F.R. § 3.157(b) provides:  Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of [evidence listed under (b)(1), (2), or (3)] will be accepted as an informal claim for increased benefits or an informal claim to reopen.  In the instant case, there was never a prior allowance as to the seizure disorder claim.  As such, 38 C.F.R. § 3.157 is not for application.

Critically, however, the Board finds that the October 9, 2001 communication from the Veteran in which he asserted that he had an appeal pending for seizure disorder constituted a claim for benefits.  As indicated above, applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  See 38 C.F.R. § 3.1(p) (2012); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits).

In this regard, the Veteran was clearly expressing an intent to apply for service connection for seizure disorder, although he mistakenly believed it already to be on appeal.  Following the submission of that statement, the RO did not attempt to develop the claim.  As indicated above, the RO eventually developed the Veteran's seizure disorder claim following another communication in September 2002 in which he explicitly stated his intent to file a claim for service connection for seizure disorder.

Accordingly, based upon a complete review of the evidence on file in this case, and giving the Veteran the benefit of the doubt, the Board finds that an effective date of October 9, 2001, is the earliest effective date assignable for service connection for seizure disorder.  Here, the Board construes the Veteran's October 9, 2001 written statement as a request for service connection for seizure disorder.  Thus, the effective date of service connection for seizure disorder should date back to October 9, 2001, the date the claim was filed.  In so finding, the Board notes that there is ample evidence to demonstrate that the Veteran suffered from a seizure disorder at the time of the October 9, 2001 claim.  Specifically, VA treatment records dated July 2001, May 2001, and April 2001 demonstrate that the Veteran was being treated for a seizure disorder.  Thus, it is clear that when he filed the October 2001 claim, he already suffered from the disability for which he received service connection in May 2009, seizure disorder.  See 38 C.F.R. § 3.400 (the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later).

As indicated above, the Board also finds that there is no basis for the assignment of an effective date earlier than October 9, 2001 for the grant of service connection for seizure disorder.  In this case, the record shows that the original claim for service connection for headaches was filed in February 1998.  However, as set forth in detail above, the February 1998 did not articulate a claim of entitlement to service connection for seizure disorder.  Moreover, the claims files do not reflect any communication filed prior to October 9, 2001 that can be construed as a formal or informal claim for this specific benefit.

In summary, for the reasons and based expressed above, the Board concludes that, an effective date of October 9, 2001, but no earlier, is granted for the award of service connection for seizure disorder.  The benefit of the doubt has been resolved in the Veteran's favor to this extent.  38 U.S.C.A. § 5107(b); also see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for hypertension is denied.

The claim to reopen the previously denied claim of entitlement to service connection for right hip disability is denied.

Entitlement to an effective date prior to February 2, 1998 for service connection for major depressive disorder with anxiety and panic disorder is denied.

Entitlement to an effective date of October 9, 2001, but no earlier, for service connection for seizure disorder is granted.


REMAND

After having considered the matter, and for reasons expressed immediately below, the Board finds that the remaining claims on appeal must be remanded for further development.

With regard to the claim of entitlement to service connection for a low back disability, the Veteran contends he injured his low back during a July 1996 in-service fall.  See, e.g., the Veteran's claim dated April 2007.  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden, supra.

STRs demonstrate that the Veteran complained of back pain following a slip and fall on an oil slick in July 1996.  A back spasm was noted at that time.  He was diagnosed with a contusion.  VA treatment records dated July 1996 document a normal lumbar spine upon x-ray.

A July 2009 VA treatment record noted tenderness over the lower sacroiliac joints with marginally positive straight leg raise on the right and negative on the left.  The Veteran was diagnosed with a sacroiliac strain.  Private treatment records dated September 2009 noted the Veteran's complaint of low back pain.  It was indicated that x-rays revealed "mild degenerative change with some disc space narrowing."  The Veteran was diagnosed with "right low back pain, possible lumbar disc disease with chronic pain."

There is no competent evidence of medical nexus currently of record with respect to the claimed low back disability.

Thus, the low back disability claim presents certain medical questions concerning diagnosis and nexus, which cannot be answered by the Board.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions).  These questions must be addressed by an appropriately qualified physician.  See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).  Accordingly, upon remand, the Veteran should be afforded a VA examination to address the outstanding questions of diagnosis and nexus pertaining to the low back claim.

With respect to the Veteran's claims of entitlement to increased initial disability ratings for the service-connected seizure disorder and major depression with anxiety and panic disorder, a review of the record demonstrates that the Veteran continues to receive VA treatment for his service-connected disabilities.  In Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body.  VA treatment records as recent as May 2011 are contained in the Veteran's VA claims file.  However, a review of those records suggests that they are incomplete.  The most recent complete VA treatment records associated with the Veteran's VA claims file are dated in November 2009.  The RO must obtain any outstanding treatment records from this date to the present.

The Veteran is currently service-connected for a seizure disorder, which has been assigned a 20 percent disability rating under DC 8910.  He is also service-connected for major depression with anxiety and panic disorder, which has been assigned a 70 percent disability rating under DC 9434.  He was last afforded a VA examination for as to his seizure disorder in October 2008 and as to his psychiatric disorders in February 2009.  Review of the Veteran's subsequent VA treatment records reveals that he continued to complain of seizures and psychiatric symptomatology following the most recent VA examinations.  Accordingly, the Board notes that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of a veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).  As the Veteran was last afforded VA compensation examinations more than three years ago with respect to his seizure disorder and psychiatric claims, updated examinations must be scheduled.

Accordingly, the case is REMANDED for the following action:

1. After obtaining the appropriate release of information forms where necessary, procure records of any treatment or evaluation that the Veteran may have received at the VA Medical Center (VAMC) in Montgomery, Alabama, the VA outpatient clinic in Dothan, Alabama, or any other facility, since November 2009.  All such available documents should be associated with the claims file.

2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed low back disability.  The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file.  The examiner should elicit from the Veteran a detailed account of any instances of in-service and post-military back symptomatology.

The examiner should address the x-ray report described in the September 2009 private treatment record and either diagnose or rule out a low back disability.

After reviewing the file, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any current low back disability had its clinical onset during the Veteran's active duty or are otherwise related to such service.  In answering this question, the examiner should address the Veteran's in-service back complaints.  The examiner should also address the Veteran's post-service medical history to include the Veteran's assertions of continuity of symptomatology dating from his military service.

The examiner should provide a complete rationale for any opinion given, including discussion of evidence contrary to the opinion rendered.  If the examiner is unable to render an opinion without resorting to mere speculation, he/she must so state and provide reasoning as to why an opinion cannot be given and whether any additional evidence or testing would assist in providing such opinion.

3. Then, schedule the Veteran for a VA psychiatric examination to determine the nature and extent of his service-connected major depressive disorder with anxiety and panic disorder.  The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report.  All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify the degree of social and occupational impairment attributable to the service-connected major depressive disorder with anxiety and panic disorder.  The results of any such testing and studies should be included in the examination report.

The examiner should provide a detailed account of all manifestations of the service-connected major depressive disorder with anxiety and panic disorder found to be present.  In addition, a Global Assessment of Functioning (GAF) score should be assigned, along with an explanation of the number assigned to the Veteran.  Also, the examiner should opine as to the effect of this service-connected disability on the Veteran's ability to obtain and to maintain gainful employment.  A complete rationale should be given for all opinions and conclusions expressed.

4. Then, schedule the Veteran for a VA examination to determine the nature and extent of his service-connected seizure disorder.  The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report.  All necessary tests and studies deemed necessary by the examiner should be conducted.  The results of any such testing and studies should be included in the examination report.

The examiner should specifically indicate whether the Veteran suffers from major or minor seizures.  The examiner should also describe the frequency of such seizures.  The examiner should also detail the impact of the Veteran's seizures on his employability.  A complete rationale should be given for all opinions and conclusions expressed.

5. Thereafter, readjudicate the issues on appeal - entitlement to service connection for low back disability and entitlement to increased initial disability ratings for service-connected seizure disorder and major depressive disorder with anxiety and panic disorder.  If any benefit sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board.

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).

These claims 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).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs