Citation Nr: 1309950 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 11-16 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for coronary heart disease and hypertension as secondary to service-connected psychiatric disability to include posttraumatic stress disorder (PTSD) and anxiety reaction. 2. Entitlement to service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1942 to September 1945. These matters are before the Board of Veterans' Appeals (the Board) on appeal of a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which, in part, confirmed and continued the denial of service connection for hypertension and coronary artery disease as secondary to service-connected anxiety reaction with PTSD. The Board notes that in an October 2011 supplemental statement of the case (SSOC), the RO appeared to have addressed the issues of service connection for hypertension and coronary artery disease without first reopening the claim. The Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Accordingly- and given the Board's favorable disposition of the petition to reopen-the Board has characterized the appeal as encompassing the matters set forth on the title page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an unappealed September 2004 rating decision, the RO denied entitlement to service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction. 2. Evidence received since the September 2004 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction. 3. The competent evidence shows that the Veteran's coronary heart disease and hypertension were aggravated by his by his service-connected psychiatric disability to include PTSD and anxiety reaction. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the criteria for reopening the claim for service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction are met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A (a) (2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Given the favorable disposition of the claims to reopen and grant the claim for service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction; the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished as to these issues. Claim to Reopen VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). The Veteran sought to reopen his claims in May 2009. In this regard, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that 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. In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the RO's September 2004 denial of service connection for hypertension and coronary artery disease. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In a March 2004 rating decision, the RO denied the Veteran's claim of entitlement to service connection for hypertension and coronary artery disease on the basis that these disabilities were not shown during the Veteran's active duty and the evidence did not establish a relationship between his hypertension and coronary artery disease and his service-connected PTSD. In a September 2004 rating decision, the RO confirmed and continued the denial of entitlement to service connection for hypertension and coronary artery disease as secondary to service-connected anxiety reaction and PTSD. The Veteran did not appeal the September 2004 rating decision within a year, and it became final. 38 U.S.C.A. § 7105. The Veteran sought to reopen his claim in May 2006. Evidence received since the September 2004 rating decision includes the report of an October 2010 VA examination in which the examiner opined that the Veteran's hypertension and coronary artery disease were at least as likely as not (50/50 probability) permanently aggravated by his service-connected anxiety disorder with PTSD. The Board finds that the above-described evidence provides a basis for reopening the claim for hypertension and coronary artery disease as secondary to his service-connected psychiatric disability to include PTSD and anxiety disorder. Indeed, this evidence is "new" in that it was not before agency adjudicators at the time of the September 2004 denial of service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that it pertains to the previously unestablished element of a link between a current hypertension and coronary artery disease disability and service, and raises a reasonable possibility of substantiating the claim. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection. The prior denial of service connection in the September 2004 rating decision was based on a finding that there was not a relationship between his hypertension and coronary artery disease and his service-connected PTSD. The October 2010 VA examination report suggests that the current hypertension and coronary artery disease disabilities are related to a service-connected disability as the VA examiner opined that it was likely that the Veteran's hypertension and coronary artery disease were permanently aggravated by his service-connected anxiety disorder with PTSD. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection. As noted above, for purposes of determining whether the claim should be reopened, the evidence is presumed to be credible. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction, have been met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Claim for Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. at 448, see also 38 C.F.R. § 3.322 (2012). The Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, was amended during the course of the Veteran's claim and appeal. The intended effect of this amendment was to conform VA regulations to the Allen decision. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). However, given the possibility that these changes could potentially be interpreted as substantive, and because the Veteran's claim was pending before the regulatory change was made, the Board will apply the version of 38 C.F.R. § 3.310 that was in effect before the change, which arguably favors the claimant. Accordingly, the Board will evaluate the claimed disabilities, irrespective of any baseline. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background In a June 2009 letter, a private physician noted that the Veteran presented to his office 2 years ago suffering from hypertension and hypertensive urgency. He was also found to have suffered from PTSD from his service. Since being placed on Xanax, he had not suffered from any hypertensive urgencies as all symptoms resolved with the treatment of his PTSD. As noted above, the Veteran underwent a VA examination in October 2010. The examiner opined that it was less likely than not that the Veteran's hypertension and coronary artery disease was caused by or a result of anxiety reaction with PTSD. However, the examiner also opined that the Veteran's hypertension and coronary artery disease were at least as likely as not (50/50 probability) permanently aggravated by his service-connected anxiety disorder with PTSD. This was based upon the review of medical records and the clinical knowledge of blood pressure elevation in times of anxiety and stress. The examiner noted that the Veteran did have improved control of his blood pressure when on Xanax as well. The examiner concluded that he could not quantify the baseline manifestations of the Veteran's hypertension and the increased manifestations of his hypertension due to his his generalized anxiety disorder without resorting to mere speculation. After resolving all reasonable doubt in favor of the Veteran, the Board finds service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction is warranted. In support of this conclusion, the Board notes that the VA examiner in October 2010 determined that the Veteran's hypertension and coronary artery disease was at least as likely as not aggravated by his psychiatric disability to include PTSD and anxiety reaction. As noted above, effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen, supra, for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). In this regard, the Board has also considered that the language used by October 2010 VA examiner was in terms that spoke to aggravation. Specifically, the October 2010 VA examiner noted that he could not quantify the baseline manifestations of the Veteran's hypertension and the increased manifestations of his hypertension due to his his generalized anxiety disorder without resorting to mere speculation. However, as noted above, the Veteran's claim was pending before Allen and the revision of 38 C.F.R. § 3.310. For this reason, and having resolved doubt in favor of the Veteran, the Board finds the Veteran's claim for secondary service connection is adequately supported. 38 C.F.R. § 3.102. Additionally, there is no contrary medical evidence of record that indicates that the Veteran's service-connected psychiatric disability to include PTSD and anxiety reaction did not exacerbate his hypertension or coronary artery disease. In light of the totality of the evidence of record, and affording all reasonable doubt to the Veteran, the Board finds the Veteran's claim for secondary service connection is adequately supported. 38 C.F.R. § 3.102. Thus, the benefit sought on appeal is granted on a secondary basis. 38 C.F.R. § 3.310. ORDER New and material evidence having been received, the claim of entitlement to service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction is reopened. Entitlement to service connection for coronary heart disease and hypertension as secondary to his service-connected psychiatric disability to include PTSD and anxiety reaction is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs