Citation Nr: 1310899	
Decision Date: 04/02/13    Archive Date: 04/11/13

DOCKET NO.  06-28 369A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension, to include whether a claim for service connection should be reconsidered.

2.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a heart disorder.

3.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for sleep apnea.


REPRESENTATION

Veteran represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. Millikan, Counsel


INTRODUCTION

The Veteran served on active military duty with the United States Marine Corps from December 1973 to June 1977 and with the Marine Corp Reserves from 1977 to 1979.  He then served with the Army National Guard from June 1982 to June 1984 and the Army Reserves from June 1984 to October 1998, with two periods of active duty from January 1991 to May 1991 and from July 1996 to February 1997.  This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2003 and May 2003 rating decisions by the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) and a May 2011 Board remand.

In May 2011, the Board remanded the issues on appeal as well as the issues of entitlement to service connection for a gastrointestinal disorder, claimed as a hernia, and for a toenail disorder, claimed as foot fungus.  In an October 2012 rating decision, the RO granted service connection for a hernia with gastroesophageal reflux disease and for right foot onychomycosis, claimed as foot fungus.  That rating decision advised the Veteran that these actions were considered a full grant of the claims on appeal and the issues were considered fully resolved.  A review of the claims file indicates there is no notice of disagreement; additionally, the diagnoses of record or onychomycosis, hiatal hernia, and gastroesophageal reflux disease.  In view of the foregoing, these issues have been resolved and are no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (providing that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement thereafter must be timely filed to initiate appellate review of the claim concerning downstream issues). 

Certain records from the claims file have been stored electronically as part of the Virtual VA paperless claims processing system.  This system uses, instead of paper, a highly secured electronic repository to store and review documents involved in the claims process.  Although the majority of records from this claims file are associated with the physical, or paper, claims file, because some of the documents were added to the electronic version of this file as part of the virtual claims file, any consideration of this appeal must consider both the paper and virtual claims files.  The Board has reviewed all electronic and paper records associated with this file. 

In March 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of this hearing is associated with the claims file.  A VLJ who chairs a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked.  38 C.F.R. § 3.103(c)(2) (2012); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to reopen the Veteran's claim for sleep apnea.  The VLJ asked specific questions, however, directed at identifying whether any new evidence submitted was material.  Additionally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The issues of entitlement to service connection for hypertension and the petition to reopen a claim of entitlement to service connection for a heart disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  Service connection for hypertension was granted in a September 1994 rating decision and severed in an unappealed January 2003 rating decision.

2.  A service treatment record (STR), pertinent to the hypertension claim and dated in January 1997, was associated with the claims file subsequent to the January 2003 rating decision. 

3.  Service connection for obstructive sleep apnea was denied by unappealed September 1995 and May 2003 rating decisions.

4.  Evidence associated with the claims file since the unappealed May 2003 rating decision does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for sleep apnea.


CONCLUSIONS OF LAW

1.  The issue of entitlement to service connection for hypertension is reconsidered.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a), (c) (2012).

2.  Evidence submitted to reopen the claim of entitlement to service connection for sleep apnea is not new and material, and therefore, the claim is not reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the petition to reopen a claim for entitlement to service connection for hypertension, because the claim is reconsidered and remanded for further development, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107(West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012).

With respect to the petition to reopen a claim for entitlement to service connection for sleep apnea, under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

VCAA notice requirements apply to all five elements of a service connection claim, including:  (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  For claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.  Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).  To satisfy this requirement, VA must look at the bases for the denial in the prior decision and provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial.  Kent, 20 Vet. App. at 9-10.

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

Here, VA's duty to notify has been satisfied.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b).  A January 2005 letter that contained the required notice was sent to the Veteran prior to initial adjudication of the claim.  Additionally, the August 2006 statement of the case (SOC) noted what was necessary to reopen the claim for sleep apnea and show entitlement to service connection.  Thus, a reasonable person would have known what information and evidence was necessary to submit.  Furthermore, the Veteran was represented by a certified veterans' service organization throughout the claims process.  Accordingly, VA's duty to notify has been satisfied.  

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's STRs, service personnel records (SPRs), VA medical records, Social Security Administration (SSA) records, and identified private medical records have been obtained.  STRs were initially received by the RO in 1994; those records were a complete set from the Veteran's first period of active duty service.  There are also multiple STRs from the 1980s and 1990s.  It is unclear if a complete set of STRs from the second and third periods of active duty service may not have been obtained.  In July 2011, the National Personnel Records Center (NPRC) notified the RO that it had no additional STRs for the Veteran.  Based on a Board remand, the RO contacted Fort Dix and requested all medical records.  In September 2011, Fort Dix provided a negative response indicating that all the records had been sent to the NPRC.  The RO then specifically requested that the NPRC provide all STRs from Fort Dix.  The NPRC provided a negative response for the records for the 1991 and 1996-97 active duty time periods.  The RO contacted the Records Management Center (RMC) and requested all outstanding STRs from the 1991 and 1996-97 periods of active service.  The RMC provided a negative response.  In April 2012, the RO issued a formal finding of unavailability regarding all outstanding STRs.  The Veteran was notified.  The RO concluded that the Fort Dix records were unavailable after receiving negative responses from the NPRC and the RMC.  In an April 2012 letter, the RO informed the Veteran that STRs from Fort Dix were not obtained.  In an April 2012 submission, the Veteran stated that he had not been treated at Fort Dix, but had been treated at Fort Hood.  

Records from Fort Hood are not in the claims file and do not appear to have been specifically requested, but the Board finds there is no error in proceeding to adjudication of this claim.  Although VA has a duty to make as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, it may end its efforts where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them.  38 C.F.R. § 3.159(c)(2).  The RMC and NPRC provided negative responses for all SPRs for the relevant time periods.  Although the NPRC has STRs, SPRs, and clinical records for Veterans, the NPRC does not have any STRs for Veterans separated from the Marine Corps and the Army on and after specific dates.  See VA Adjudication Procedures Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section A.3.  STRs for those Veterans are stored at the RMC.  See VA Adjudication Procedures Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section A.4.  The RO requested records from both repositories and received negative responses.  Accordingly, the Board finds that all further efforts to obtain those records would be futile and VA's duty to assist in this regard has been met.

Moreover, although VA did not provide the Veteran with a medical examination, none was required in this case.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains:  (1) competent lay or medical evidence of disability or recurrent or persistent symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4).  McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology).  This duty, however, applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured.  38 C.F.R. § 3.159(c)(4)(iii).  Here, as is further discussed below, the Board finds that no new and material evidence has been presented and thus no examination was necessary.  Additionally, the Veteran provided testimony at a March 2011 Board hearing.  There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.

Finally, the Board finds that there has been substantial compliance with the prior May 2011 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).  That remand requested that the RO send the Veteran a letter requesting that he provide information regarding treatment for any of the disorders on appeal, that the RO obtain all VA records since March 2011, that the RO attempt to obtain all service department records from the NPRC and Fort Dix, that the RO issue a formal finding of unavailability if the service department records were not obtained, and that the RO readjudicate the claims thereafter.  The RO sent a June 2011 letter to the Veteran requesting information regarding medical treatment.  The Veteran did not provide a response.  Additionally, VA treatment records dated after March 2011 are associated with the paper and virtual claims file.  On remand, the RO requested all service department records from Fort Dix, the RMC, and the NPRC.  Negative responses were received from each.  In April 2012, the RO issued a formal finding of unavailability and notified the Veteran of the inability to obtain the records.  Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal.  

Claims to reopen

Although a prior decision is final, a claim will be reopened if new and material evidence is presented.  38 U.S.C.A. § 5108.  New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  "New" evidence means existing evidence not previously submitted to VA.  "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.  38 C.F.R. § 3.156(a).  

In determining whether evidence is new and material, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination).  Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Shade, 24 Vet. App. at 117.  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.  Shade, 24 Vet. App. at 117.  

Additionally, where new and material evidence is received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence.  38 C.F.R. § 3.156(c)(1).  A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source.  38 C.F.R. § 3.156(c)(2). 

If new and material evidence is presented, the Board shall reopen the claim and review the former disposition of the claim.  38 U.S.C.A. § 5108.  But if the RO did not reopen the claim and consider it on a direct basis, then the Board may not consider the claim on the merits unless the Veteran has waived RO consideration or the Veteran would not be prejudiced by such consideration.  Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010) (noting that generally the Board should return a reopened claim to the RO for initial consideration, but may consider the merits of the claim where the Veteran submits a waiver or would not be prejudiced by such adjudication); Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (noting that the Board must consider whether a veteran is prejudiced by a lack of RO consideration of the merits of a claim).

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  In order to establish service connection, the following must be shown:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004).  

Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  In addition, hypertension may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Additionally, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Hypertension

In a September 1994 rating decision, the RO denied hypertension, noting that the disorder pre-existed service and was not aggravated thereby.  In a September 1995 rating decision, however, the RO granted service connection for hypertension.  In April 1997, the Veteran filed a claim for an increased evaluation.  That claim was denied in August 1999 and January 2000 rating decisions.  In an October 2000 rating decision, the RO proposed to sever service connection on the basis of clear and unmistakable error because the evidence had not actually shown aggravation of hypertension by service.  

In an April 2001 rating decision, the RO severed service connection for hypertension finding that aggravation was not shown.  The Veteran was notified in a January 2003 letter.  The Veteran did not appeal and no new and material evidence was submitted within a year of the decision.  The January 2003 decision is final based on the evidence then of record.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103 (2012).  

In November 2004 claim, the Veteran requested to reopen his claim of entitlement to service connection for hypertension.  In an August 2005 rating decision, the RO found that the claim was not reopened because the evidence submitted continued to show treatment for hypertension, but was not new and material.  

In February 2012, a Record of Inpatient Treatment from the Heidelberg Army Medical Center dated in January 1997, during the Veteran's third period of service was associated with the claims file.  The principal diagnosis noted was hypertension urgency, although nothing else was noted.  This STR was not previously of record, is pertinent, and although unclear how it came to be associated with the claims file, resolving all reasonable doubt in favor of the Veteran, VA had sufficient information to obtain the record prior to the 2003 rating decision.  Accordingly, VA will reconsider the claim, rather than requiring the submission of new and material evidence.  38 C.F.R. § 3.156(c)(1), (2).  

Because the RO did not consider this claim on the merits, and the Veteran has not yet had the chance to argue the merits of his case, the issue is remanded for such consideration in the first instance.  See Hickson, 23 Vet. App. at 399-400.  As is further discussed below, this issue requires further development which will be accomplished in the remand.

Sleep apnea

In a September 1995 rating decision, the RO denied service connection for sleep apnea because there was no current disability.  The Veteran did not perfect an appeal of that rating decision.  In an April 2003 rating decision, with May 2003 notice to the Veteran, the RO denied service connection for sleep apnea because it was not due to an undiagnosed illness or to active service.  The Veteran did not appeal that decision.  Additionally, although June 2003 VA examinations were submitted within one year of this rating decision, the examinations were not new and material; they addressed hypertension, a heart disorder, and peripheral nerves.  38 C.F.R. § 3.156(b).  The May 2003 decision is thus final based on the evidence then of record.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.  

In November 2004, the Veteran requested to reopen his claim of entitlement to service connection for sleep apnea.  In an August 2005 rating decision, the RO did not find new and material evidence to reopen the Veteran's claim regarding sleep apnea because the evidence submitted did not raise a reasonable possibility of substantiating the claim because it did not indicate a nexus to service.  The Veteran appealed.

The RO determined that new and material evidence was not presented.  Such a determination, however, is not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claim.  Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted).  Because the May 2003 decision is the last final disallowance, the Board must review all of the evidence submitted since that action to determine whether the Veteran's claim for service connection should be reopened and re-adjudicated on a de novo basis.  Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). 

Evidence of record at the time of the May 2003 decision included the following:  STRs, SSA records, private medical records, and VA medical records.  In a November 1973 service entrance report of medical history (RMH), the Veteran reported that he did not have frequent trouble sleeping.  A November 1973 service entrance report of medical examination (RME) noted normal sinuses, lungs, chest, and nose.  A May 1977 service discharge RME noted normal nose, sinuses, lungs, and chest.  In November 1980, October 1982, February 1987, and March 1991 RMHs, the Veteran denied frequent trouble sleeping, and ear, nose, or throat trouble.  November 1980, October 1982, February 1987, and March 1991 RMEs noted normal nose, sinuses, mouth, throat, lungs, and chest.  September, October, and December 1998 VA medical records assessed sleep apnea.  In September, the Veteran had been using a CPAP machine for 6 months.  In an August 1999 VA record, the Veteran reported a history of sleep apnea.  An April 2000 private record assessed sleep apnea.  The Veteran asserted that his problems began after Desert Storm.  A March 2003 VA pulmonary consult indicated a normal study.  At an April 2003 VA examination, the Veteran reported difficulty going to sleep with daytime hypersomnolence.  He used a CPAP at night. 

Evidence submitted after the May 2003 decision includes private and VA medical records and lay statements.  Private medical records dated from 2002 to 2005 diagnosed sleep apnea.  A June 2007 VA record noted an impression of severe sleep apnea, based on a sleep study.  VA records dated from 2010 to 2012 diagnosed sleep apnea.  At the Board hearing, the Veteran stated that his ailments began after his second period of active service in the Gulf War.  The Veteran's wife provided testimony that his problems began after service in Desert Storm.  

The Board finds that new and material evidence has not been presented.  Prior to the 2003 rating decision, the evidence consisted of a current diagnosis of sleep apnea and lay evidence that the disorder began and persisted after he arrived home from his active duty in the Gulf War.  The newly submitted evidence consists of medical records indicating diagnoses of sleep apnea and the Veteran's assertions of onset and continuity since his Gulf War service.  This evidence is cumulative; it addresses the same elements of service connection and does not provide any additional information.  See 38 C.F.R. § 3.156(a); Smith v. West, 12 Vet. App. 312, 314 (1999) (providing that "new" evidence is that which was not of record and is not merely cumulative of other evidence in the record).  Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it does not raise a reasonable possibility of substantiating the claim as it provides no additional information regarding a relationship to service.  Shade, 24 Vet. App. at 117.  Accordingly, for all of the above reasons, the Veteran's claim is not reopened.


ORDER

The claim for entitlement to service connection for hypertension is reconsidered; the claim is granted to this extent only. 

New and material evidence not having been received, the claim for entitlement to service connection for sleep apnea is not reopened. 



REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims.  

Remand is required to obtain medical opinions.  VA's duty to assist includes providing a medical examination and obtaining an etiological opinion when is necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The RO did not provide the Veteran with an examination.  Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159(c)(4); McLendon v, 20 Vet. App. at 83-86.  

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In order to establish service connection, the following must be shown:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden, 381 F.3d at 1167.  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  In addition, hypertension may be presumed to have been incurred during service if it first became manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim.  38 C.F.R. § 3.303(b); Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions).  

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).  To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004).  A veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  Cotant v. Principi, 17 Vet. App. 116, 132 (2003).

Where, however, a claim is based on a period of ACDUTRA, even where there is prior active duty service, there must be an examination prior to entry into the period of service for the presumption of soundness to apply.  Smith v. Shinseki, 24 Vet. App. 40, 45 (2010).  If there is no such examination, the presumption is inapplicable, and the claimant must show "direct evidence both that a worsening of the condition occurred during the period of active duty for training and that the worsening was caused by the period of active duty for training."  Smith, 24 Vet. App. at 48.  Presumptive service connection is never applicable for a period of ACDUTRA.  Smith, 24 Vet. App. at 47 (providing that "a claimant whose claim is based on a period of active duty for training can never be entitled to the presumption of service connection"). 

Here, there is a current diagnosis of hypertension.  The service entrance examination prior to the first period of active duty did not indicate hypertension.  There were no entrance examinations prior to the Veteran's second and third periods of active duty.  Hypertension was diagnosed prior to the Veteran's second period of active duty service.  A January 1997 STR from the Veteran's third period of active duty noted hypertension urgency.  High blood pressure was noted as early as the 1980s, but the first diagnosis of hypertension was in 1990.  Thereafter, there are multiple treatment records for hypertension.  The Veteran alleges that his hypertension was aggravated during his second period of active duty service.  He alleges that his medication was unavailable and this worsened his blood pressure and that it has never improved.  STRs substantiate that his medication was unavailable and that his medication was switched.  Opinions addressing all periods of active duty and period of ACDUTRA are thus required in order to resolve this claim.

Regarding the petition to reopen a claim of entitlement to service connection for a heart disorder, this claim is inextricably intertwined with the other claim on appeal and is remanded.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue).  Here, the issue of entitlement to service connection for hypertension would impact the claim as a grant of service connection would affect the Veteran's potential entitlement to service connection for heart disorder, which is claimed secondary to the hypertension.  Accordingly, remand is required. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain opinions regarding the etiology of the Veteran's hypertension from an appropriate VA clinician.  If the clinician determines that examination is required, one must be provided.  The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.  If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review.  The rationale for all opinions expressed must be provided.  If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion.  

If an examination is required to make this determination, one shall be provided.  The examiner is instructed to provide the following opinions, in light of the service and post-service evidence of record:  

1) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by his first period of active duty service from 1973 to 1977?  The examiner must address all relevant evidence, including a November 1973 service entrance RME noting blood pressure of 124/82 and the May 1977 service discharge RME noting blood pressure of 108/82.  There are also multiple blood pressure readings of record shortly thereafter, including readings in an October 1979 private medical record, a May 1980 STR, and a November 1980 RME.  

2) Does the evidence clearly and unmistakably show that the Veteran's hypertension was not aggravated by his active duty service from January 3, 1991 to May 15, 1991?  The examiner must address all relevant evidence, to include a November 23, 1990 STR that noted that during in-processing, the Veteran reported hypertension of 5 years.  He stated he had been on medication for 3 years, but didn't always take his medication.  He was checked for blood pressure on November 24, 25, 27, 28, 29, and 30th.  The readings were as follows:  158/58; 170/96; 138/82; 142/80; 140/78; 162/106; 162/100.  On November 30th, it was noted that the Veteran's medication had not yet arrived.  Blood pressure was 170/110.  On December 2, 1990, the examiner stated the Veteran's blood pressure appeared normal.  Another examiner reviewed the records and stated that the Veteran was to monitor his blood pressure and when he received his medications, to take them.  On January 9, 1991, the Veteran returned and it was noted that he had been on two medications, and that one, Tenex, was not available.  Alternatives were discussed, he was switched to a different medication, and he was advised to return for blood pressure checks daily for 5 days after the switch.  A March 1991 RME noted blood pressure of 165/110.  Other 1991 records noted readings of 150/120 and 162/98.  In an April 1991 STR, the Veteran reported medication for hypertension.  

In August 1991 post-service discharge STRs the assessment was hypertension.  Readings were 158/88 and 158/84.  A November 1991 private record assessed severe hypertension, controlled.  Private medical records indicated the Veteran was hospitalized for five days in November 1991.  He had reported to the emergency room with three days of headaches and was noted to have markedly elevated blood pressure.  The impression was severe hypertension and chest pain, possible new onset angina.  A cardiology consult was placed and he was started on nitroglycerin.  After examination and observation, the discharge diagnosis was malignant hypertension.  Thereafter, an August 1992 STR noted hypertension, moderate, treated.  The Veteran's medication was not changed, as the clinician was apprehensive about doing so based on one visit.  He was to return in 4 to 5 days for repeat blood pressure checks and to consider readjustment of medication.  1992 and 1993 private medical records assessed severe hypertension.  A March 1994 private record noted uncontrolled hypertension.  The examiner must also consider the Veteran's lay statements made at the RO hearing, that he had hypertension during his time in the National Guard in 1982 or 1984, which had previously been controlled by taking one pill.  

3) Does the evidence clearly and unmistakably show that the Veteran's hypertension was not aggravated by his active duty service from July 2, 1996 to February 25, 1997?  The examiner must address all relevant evidence including 1992, 1993, and 1994 private medical records that assessed severe hypertension or uncontrolled.  STRs from 1996 indicated blood pressure of 198/132, 142/100, and 144/88.  In an April 1996 VA record, the impression was uncontrolled diastolic hypertension.  A May 1996 VA record noted well-controlled diastolic hypertension.  An in-service January 1997 STR noted inpatient treatment due to hypertension urgency.  Post active duty discharge, March, April, and May 1997 VA records noted significant or uncontrolled diastolic hypertension.  

4) Does the evidence show that the Veteran's hypertension worsened during a period of ACDUTRA and that the worsening was caused by that period of ACDUTRA?  The following are the relevant dates of the Veteran's ACDUTRA:  April 13-27, 1985; May 2-16, 1987; May 20-June 3, 1989; May 26-June 9, 1990; August 8-22, 1992; September 3-24, 1993; June 19-July 2, 1994; and July 11-25, 1998,  The examiner must address all relevant evidence, to include STRs in and around the pertinent dates.

2.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

3.  Review the opinion or examination report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AMC must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

4.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
CHERYL MASON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs