Citation Nr: 1311267 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 07-02 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hypertension and, if so, whether the claim should be granted. 2. Entitlement to service connection for a kidney disorder. 3. Entitlement to service connection for a sleep disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from July 1978 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) from a February 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. A transcript of the Veteran's testimony at a February 2013 videoconference before the undersigned Veterans Law Judge in contained in Virtual VA. At that time the Veteran submitted additional evidence, together with a waiver of initial RO consideration thereof. The Veteran perfected an appeal as to multiple issues. However, in a March 2010 VA Form 9 he limited his appeal to the issues as stated on the title page and, further, at the February 2013 videoconference it was agreed that the only issues before the Board were those as now stated on the title page, and these were the only issues as to which testimony was directed. Accordingly, the Board finds that the other issues developed for appellate consideration have been withdrawn. The claims for service connection for a kidney disorder and for a sleep disorder, as well as, upon reopening, the claim for service connection for hypertension are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In June 1994, the RO denied service connection for hypertension and although notified of the denial, the Veteran did not appeal this action. 2. Additional evidence received since the unappealed rating action of June 1994, taken together with evidence previously on file relates to an unestablished fact, the current existence of hypertension, necessary to substantiate the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The unappealed rating action of June 1994, which denied service connection for hypertension and of which the Veteran was notified, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a) (2010). 2. The new and material evidence, when considered with the old evidence, is sufficient to reopen the claim of service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). New and Material Evidence Claim As the application to reopen the claim of service connection for hypertension is resolved in the Veteran's favor, further discussion of VCAA compliance as to the duty to notify is not required. Moreover, any failure of the RO to comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006) is nonprejudicial. Further discussion of VCAA compliance as to the duty to assist is deferred pending remand of the claim for service connection for hypertension. Background On VA general medical examination in May 1994 it was reported that the Veteran had intermittent hypertension but was not taking medication. He took two aspirins daily for headaches. His diastolic readings ranged from 136 to 146 and his systolic readings ranged form 78 to 86. The diagnosis was a history of labile hypertension. The June 1994 rating decision which denied service connection for hypertension because it was not shown to exist, as opposed to labile hypertension. It was noted that although the service treatment records (STRs) showed that during service in July 1993 he complained of hypertension, his blood pressure was 135/63 and hypertension was ruled out; his blood pressure at service discharge was 127/83; however, on VA examination in 1994 his blood pressure readings were not excessive elevated and the diagnosis was that he had a history of labile hypertension. The Veteran did not appeal a June 1994 rating decision, of which he was notified and provided a copy of, that month which denied service connection for hypertension. Thereafter, a September 1998 rating decision granted service connection for post-traumatic stress disorder (PTSD). A private clinical record shows that in December 2003 the Veteran was taking medication for hypertension. A September 2004 private medical report from Dr. P. V. B. states that the Veteran was taking medication for hypertension. Subsequently, in October 1994 the Veteran applied to reopen the claim for service connection for hypertension, and also claimed service connection for a kidney disorder and a sleep disorder. On VA psychiatric examination in November 2004 the Veteran reported that he worried about his health due to hypertension and renal failure. Reopening An unappealed rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105(c). New and material evidence is required to reopen a previously denied claim. 38 U.S.C.A. § 5108. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine, articulated in Evans v. Brown, 9 Vet. App. 273 (1996), was not altered by the ruling in Hodge v. West, 155 F.3d 1356 (Fed.Cir. (1998). The ultimate weight to be accorded evidence is a question of fact that must be determined based on all of the evidence on file but only after a claim is reopened. Justus, 3 Vet. App. at 513. The application to reopen the claim of service connection for hypertension was received at the RO in August 2004. As to applications to reopen a previously denied claim received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). However, the question of whether there is a reasonable possibility of substantiating the claim (in the final sentence of § 3.156(a)) does not create a third element and separate determination in the reopening analysis but is a component of whether there is new and material evidence. Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen and that "the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim"). The doctrine of the favorable resolution of doubt is not applicable in the reopening analysis but applies only after new and material evidence has been submitted to reopen a claim and adjudication of the claim on the merits. Annoni v. Brown, 5 Vet. App. 463, 467 (1994). Analysis The additional evidence includes both VA and private clinical records that support the Veteran's claim that he now has hypertension; whereas, the 1994 rating decision found that he did not have hypertension. For a valid claim of service connection there must be a "current" disability. Service connection requires that there be (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). Thus, the additional evidence is new and material because it relates to the unestablished fact necessary to substantiate the claim, i.e., the existence of a current disability, i.e., hypertension. And, so, the new evidence when taken together with the old evidence raises a reasonable possibility of substantiating the claim. The RO denied the application to reopen but only after considering that the evidence did not also show that any current hypertension was related to military service. However, in the reopening context, all that is required is new and material evidence as to any single element for service connection which was a basis for the past denial, and not all three elements. Here, the evidence shows that the Veteran now has hypertension and this is all that is required in order to grant reopening. In analysis of whether the evidence is sufficient to reopen, the credibility of the evidence is not weighed; rather, the weighing of the credibility of the evidence must take place only after reopening and upon de novo adjudication. As the evidence is new and material, the claim for service connection for hypertension is reopened. However, further adjudication of the claim on the merits must be deferred pending evidentiary development. ORDER As new and material evidence has been presented, the claim of service connection for hypertension is reopened, and to this extent only the appeal is granted. REMAND As to a sleep disorder, at the February 2013 videoconference the Veteran testified that he had insomnia or a sleep disorder during his active duty participation in Operation Desert Storm and he had reported it on a medical evaluation board form. He continued to have it, getting only 3 to 4 hours of sleep nightly. He felt it was related to his PTSD. Page 3 of the transcript of the videoconference (T3). He had noticed that he had a sleep disorder upon his return in1992 from Iraq, at the same time he was having other problems with PTSD. He had never had a sleep study but had only taken medication. T4. When asked if he woke up because he stopped breathing, he replied that he woke himself up. T5. He had been having sleep disorder problems since 1993 but had not seen a private doctor for sleep problems, but only VA. T6. The Veteran testified that he had seen private doctors for his hypertension. He had been at work one day in 2003 and went in to a private doctor because "I wasn't feeling well." He had those private physicians records with him which showed his blood pressure was 212/103. T6 and 7. When asked if private physicians had related his sleep problems to hypertension, he replied that they had related his [service-connected] headaches to his hypertension but none had mentioned his sleep disorder. He got his medication from VA. He had first noticed his sleep problems while he was in Iraq and after he was transferred to Germany, he still had sleep problems. T7. He indicated his willingness to participate in a sleep study. T9. It was indicated that an examination might be done to determine if a sleep disorder was secondary to service-connected PTSD or any other service-connected disabilities, or secondary to the claimed hypertension, or if it was an undiagnosed illness. He again affirmed his belief that PTSD played a role in his sleep disorder. T9. He had not been diagnosed as having any lung problems. T10. As to a kidney disorder, the Veteran testified that he had used Motrin for many years, during his active duty and since then, for problems with his service-connected headaches and service-connected bilateral knee disabilities. He had started using it in 1992, and after service VA had prescribed more. T11. His service representative stated that his 21 years of use of Motrin had damaged his kidneys, according to medical literature which indicated that non-steroidal anti-inflammatory drugs (NSAIDs) could damage kidneys. When asked if his physicians had ever told him anything in regard to overuse of NSAIDs as to his kidneys, he stated that they had not. The service representative again averred that medical literature supported the contention that the Veteran's long use of NSAIDs could have caused kidney damage, and this was tied in with the claim for service connection for hypertension. T12. The Veteran stated that he had not had problems with his kidneys until after military service and he had first been diagnosed with kidney problems in 2003 by a private physician, and that VA should already have those records. T13. It was conceded that he was not receiving Social Security Administration (SSA) disability benefits. T15. The Veteran stated that when his hypertension was high it aggravated his kidney disease. He was willing to report for an examination. T16. He had first been diagnosed with hypertension, by VA, in 1994, within the first year after his discharge from military service. T17. During his military service he had been diagnosed with borderline high blood pressure. Four months after service discharge, his blood pressure was once again elevated. T19. In his discussions with physicians about his hypertension, it had been mentioned with his PTSD but nothing had been put down in writing. T21. He believed that his PTSD made his hypertension worse. T12. He would submit the early clinical records from private physicians relating to his hypertension. T23 and 24. His right kidney was no longer functional. T26. Hypertension Hypertension was not formally diagnosed during service, at that time his blood pressure readings apparently raised a concern that he might have hypertension. Only labile hypertension was found on VA examination with the first postservice year, in 1994, but this does not exclude the possibility that the Veteran's current hypertension may have been of service onset or manifested within the first postservice years. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Kidney Disorder A December 2003 clinical record of the Northland Family Medicine, P. C., reflects an assessment of renal insufficiency. An April 2004 VA outpatient treatment (VAOPT) record reflects that the Veteran had retroperitoneal fibrosis causing, in part, renal failure. Also in April 2004 it was reported that the Veteran had moderate right renal atrophy, possibly secondary to hydronephrosis. It was also noted that he had a history of "CKD of uncertain etiology" but renal imaging suggested retroperitoneal fibrosis with "hydro bilateral with atrophy of at least on the right." A May 2006 VAOPT record indicated that the Veteran had a history of retroperitoneal fibrosis, diagnosed by an MRI study and not by tissue study. He had not undergone ureteral stent placement due to an improvement in his renal function, and a follow-up imaging demonstrated no hydronephrosis. The results of an imaging study in March 2006 were reported which contained an impression of a "[s]olitary functional left kidney." It is known that renal pathology can cause hypertension, and also that hypertension can cause renal pathology. See generally Systemic Hypertension in Current Medical Diagnosis and Treatment, 239 (Steven A. Schroeder, M.D., et al., eds. 1990); see also 38 C.F.R. § 3.309(a) referencing "[c]ardiovascular-renal disease, including hypertension" as "chronic" disease for the purpose of the one year presumption of service incurrence. Accordingly, examination of the Veteran and a medical opinion is needed to determine the cause and etiology of any current renal pathology which the Veteran now has, to include whether it is of service onset, manifested with the first postservice years, is caused by the claimed hypertension or the service-connected PTSD, or is aggravated by the claimed hypertension or the service-connected PTSD. Sleep Disorder Initially, the Board notes that the Veteran's service-connected PTSD is rated 50 percent disabling and under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2012). PTSD is rated under a General Rating Formula for Mental Disorders. Moreover, under that General Rating Formula, "chronic sleep impairment" is encompassed in a 30 percent rating for service-connected psychiatric disability. Under 38 C.F.R. § 4.14 "Avoidance of pyramiding" the evaluation of the same disability under various diagnoses is to be avoided and, also, the evaluation of the same manifestation under different diagnoses are to be avoided. In other words, the Veteran's chronic sleep impairment is already encompassed in the 50 percent rating current assigned for PTSD. However, sleep apnea is not. At the hearing the Veteran, in essence, testified that he not only had sleeping difficulties but also seemed to imply that he had sleep apnea. Sleep apnea syndrome, whether obstructive, central or mixed, would be rated under 38 C.F.R. § 4.97, Diagnostic Code 6847, considering criteria such as a documented sleep disorder breathing, persistent day-time hypersomnolence, use of breathing assistance device, e.g., continuous airway pressure (CPAP) machine, and chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requiring a tracheostomy. An August 2004 clinical record noted that the Veteran had been in the front line in Iraq and now had nightmares and sleeping difficulty. In light of the Veteran's testimony, an examination of the Veteran is need to determine whether he now has a chronic sleep disorder which is separate and distinct from any chronic sleep impairment due to, and compensate by the rating for, PTSD. Also, for consideration is whether the Veteran's service-connected migraine headaches or claimed hypertension play any role with respect to any sleep disorder. Further, since the Veteran testified that he had sleep disturbance while participating in a combat arena in Iraq, consideration must be given to whether any chronic sleep disorder which is separate and distinct from any chronic sleep impairment due to, and compensate by the rating for, PTSD is of service onset or is due to or is a manifestation of an undiagnosed illness. In view of the foregoing, further development of the case is in order. The Veteran should be given an opportunity to ensure that all possible private clinical records are on file and he should be afforded VA examinations as to the nature, cause(s), and etiology(ies) of his claimed disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, since the application to reopen the claim for service connection for hypertension has been granted, the remand for VA nexus examinations should also include such an examination as to his hypertension. Under the duty to assist a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). However, "[w]hen the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits." Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010). "This is because the RO generally does not assess the credibility of the evidence or determine the need for a medical examination or opinion when reopening is denied." Id. at 403 (internal citations omitted). "Thus, if the Board initially reopens a claim when the RO has not considered the need for a medical examination or opinion, or assessed the credibility of the evidence, the Board would be considering law that the RO had not already considered, possibly implicating [38 C.F.R.] § 20.903(b)." Id. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and request that they obtain and submit any outstanding private clinical records. Also, inform them that they may provide up-to-date information as to the identity of the private clinical sources and current address(es) so that VA may assist them in obtaining such records. This should include requesting that the Veteran execute and return any needed release forms. Update VA records. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claim files. 2. Afford the Veteran a VA examination to address the etiology of the claimed hypertension. The examiner must have access to and review the claims folders for the Veteran's pertinent medical history. All necessary testing should be done and the examiner should review the results of any testing prior to completion of the examination report. The examiner should render an opinion as to whether any hypertension: (a) at least as likely as not (50/50 probability) had its onset during active service or is otherwise related to the Veteran's military service; (b) at least as likely as not (50/50 probability) manifested within one year of termination of active service in January 1994; (c) at least as likely as not (50/50 probability) was caused by or is a result of service-connected PTSD or any combination of service-connected disabilities; (d) at least as likely as not (50/50 probability) was aggravated by service-connected PTSD or any combination of service-connected disabilities and, if so, to what degree. (e) at least as likely as not (50/50 probability) was caused by or aggravated by the Veteran's taking NSAIDs during or after military service, or both. (f) at least as likely as not (50/50 probability) was caused by or aggravated by the claimed kidney disorder. Please note that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. The term "more likely" and "at least as likely" support the contended causal relationship; the term "less likely" weighs against the contented causal relationship. Please answer the question posed with use of the terms "at least as likely", "more likely", or "less likely". If any of the opinions, as requested above, cannot be provided without resort to speculation, the examiner should explain why. 3. Afford the Veteran a VA examination to address the etiology of the claimed kidney disorder. The examiner must have access to and review the claims folders for the Veteran's pertinent medical history. All necessary testing should be done and the examiner should review the results of any testing prior to completion of the examination report. The examiner should render an opinion as to whether any kidney disorder: (a) at least as likely as not (50/50 probability) had its onset during active service or is otherwise related to the Veteran's military service; (b) at least as likely as not (50/50 probability) manifested within one year of termination of active service in January 1994; (c) at least as likely as not (50/50 probability) was caused by or aggravated by the Veteran's taking NSAIDs during or after military service, or both. Please note that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. The term "more likely" and "at least as likely" support the contended causal relationship; the term "less likely" weighs against the contented causal relationship. Please answer the question posed with use of the terms "at least as likely", "more likely", or "less likely". If any of the opinions, as requested above, cannot be provided without resort to speculation, the examiner should explain why. 4. Afford the Veteran a VA examination to address the etiology of the claimed sleep disorder. The examiner must have access to and review the claims folders for the Veteran's pertinent medical history. All necessary testing should be done and the examiner should review the results of any testing prior to completion of the examination report. The examiner should render an opinion as to whether any sleep disorder: (a) at least as likely as not (50/50 probability) is no more than a manifestation of the Veteran's service-connected PTSD or is a separate and distinct clinical entity. If it is a separate and distinct clinical entity, whether it: (b) at least as likely as not (50/50 probability) had its onset during active service or is otherwise related to the Veteran's military service; (c) at least as likely as not (50/50 probability) was caused by or aggravated by the Veteran's service-connected PTSD or any combination of service-connected disabilities. (d) at least as likely as not (50/50 probability) represents an undiagnosed illness, or is attributable to a known diagnosis. If not attributable to a known diagnosis, the findings should reflect all objective indications of chronic disability to include either objective medical evidence perceptible to a physician or other, non-medical indicators that are capable of independent verification. Please note that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against causation. The term "more likely" and "at least as likely" support the contended causal relationship; the term "less likely" weighs against the contented causal relationship. Please answer the question posed with use of the terms "at least as likely", "more likely", or "less likely". If any of the opinions, as requested above, cannot be provided without resort to speculation, the examiner should explain why. 5. Then readjudicate the claims in light of the additional evidence obtained. If the benefits sought are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the case to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs