Citation Nr: 1318981 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 10-04 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from July 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Houston, Texas. In May 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in October 2012 when it was remanded for further development. It has now returned to the Board for appellate consideration. FINDINGS OF FACT 1. In an unappealed February 2004 rating decision, the RO denied the Veteran's claim of entitlement to service connection for hypertension. 2. Evidence submitted subsequent to the February 2004 rating decision is not cumulative or redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran is service-connected for PTSD effective from November 2007, coronary artery disease effective from October 2003, and a scar, status post coronary artery bypass graft, effective from October 2003. 4. The competent clinical evidence of record reflects that it is more likely than not that the Veteran's service-connected PTSD contributed to the development of hypertension. CONCLUSIONS OF LAW 1. Evidence received since the February 2004 RO decision that denied service connection for hypertension, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156, 20.302, 20.1103 (2012). 2. Hypertension is proximately due to the Veteran's service-connected PTSD. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310. (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in May 2008. The notice was deficient in that it did not comply with the Court's holding in Kent v. Nicholson, 20 Vet. App. 1 (2006), wherein the Court issued a decision that established new requirements with respect to the content of the VCAA notice for reopening claims. In the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Board finds that the Veteran has not been prejudiced by the notice deficiency because the Board, in the decision below, grants the Veteran's claim to reopen. VA has a duty to assist the Veteran in the development of the claims. The claims file includes service treatment records (STRs), VA and private medical records and opinions, and the statements of the Veteran in support of his claim. A Veterans Health Administration (VHA) opinion was obtained in April 2013. In the decision below, the Board grants the Veteran's claim for entitlement to service connection for hypertension; thus, he cannot have been prejudiced by inadequacies, if any, in the examinations, opinions, or other duty to assist actions. Legal Criteria Service connection in general Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, 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). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013). Arthritis and organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection on a secondary basis Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). New and material evidence In general, RO decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2012). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is 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 denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically, in February 2004, the RO denied the Veteran's clam for entitlement to service connection for hypertension. At that time, the Veteran contended that his hypertension was due to his PTSD; however, he was not service connected for PTSD. The appellant did not appeal the decision and it became final. Evidence of record at time of last final denial The evidence of record at the time of the last final denial in 2004 included private medical records which reflected that the Veteran had hypertension, ischemic heart disease, and that he had had a coronary artery bypass graft in 1988. The records also noted that he had feelings of anxiety, restlessness, and agitation, and had been treated for depression. The Veteran contended that his hypertension was secondary to PTSD. He stated that he had stress due to his in-service experiences of mortar attacks on the base on which he was stationed, bombing of aircrafts, and the death and injuries of other individuals. He did not have a confirmed PTSD stressor, and was not service connected for PTSD. Evidence of record since the last final denial The evidence received since the last final denial consists of additional medical records, a written article, and the statements of the Veteran, to include his testimony at a Travel Board hearing. A 2013 VHA opinion which discusses the relationship between hypertension and PTSD, and specifically with regard to the Veteran, is also of record. Importantly, in a January 2009 rating decision, the RO granted the Veteran entitlement to service connection for PTSD effective from November 30, 2007. Old and new evidence of record considered as a whole The Board finds that some of the additional evidence raises a possibility of substantiating the claim for entitlement to service connection for hypertension as secondary to PTSD. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that the phrase "raises a reasonable possibility of substantiating the claim" must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. The Veteran's claim was previously denied, in part, because he could not be service-connected for hypertension as secondary to PTSD because he had not been service connected for PTSD. As he has now been service connected for PTSD, disabilities secondary to it may also be service-connected if the evidence supports such a finding. The Board finds that the evidence added to the record since the last final denial, when considered in conjunction with the record as a whole, does raise a reasonable possibility of substantiating the claim, and as such, is new and material to reopen the claim. De Novo analysis of reopened claim Having reopened the Veteran's claim, the Board must now determine whether the reopened claim of entitlement to service connection for hypertension may be granted on the merits, de novo. An essential element of a claim for service connection is that there must be evidence of a current disability. As noted above, the medical evidence of record reflects that the Veteran has hypertension; thus, this element has been met. Initially, the Board notes that the Veteran's STRs are negative for hypertension. The Veteran's June 1966 report of medical examination for enlistment purposes reflects that his blood pressure was 120/86. An October 1967 report of medical examination for initial flying purposes reflects that his blood pressure was 104/86. The Veteran's November 1969 report of medical examination for separation purposes reflects that his blood pressure was 112/80 at that time. His heart and vascular system were noted to be normal upon clinical examination. In sum, the Veteran's STRs are against a finding that he is entitled to service connection on a direct incurrence basis. The Board will next discuss whether the Veteran is entitled to service connection for hypertension as secondary to a service-connected disability. The Veteran is service connected for coronary artery disease (CAD), PTSD, and a scar. Private records reflect that the Veteran was diagnosed with chronic anxiety and depression in August 1987. He was prescribed Halcion. The Veteran was diagnosed with coronary artery disease, and had quadruple bypass surgery, in August 1988. Records in 1989 reflect that the Veteran was hospitalized for a month with depression. He was taking Pamelor and Buspar. A January 1991 Mobil Medical Department record reflects that the Veteran was not taking medicine for high blood pressure. He further reported that his blood pressure was "normal to low." An August 1991 health questionnaire reflects that the Veteran reported that he had never had high blood pressure. A January 1999 health questionnaire reflects that the Veteran reported that he had never had high blood pressure. The earliest clinical evidence of hypertension is in 2001. A June 2001 private clinical record reflects that the Veteran had stable hypertension. (An April 2009 VA examination report reflects the Veteran's statement that he has had hypertension since 1989; however, this statement is contradicted by the other evidence of record noted above, and is less than credible.). In 2008, the Veteran was diagnosed with PTSD and also Major Depression Disorder not related to PTSD. In support of his allegation that his hypertension is due to his PTSD, the Veteran has submitted an internet article on PTSD and heart disease. In addition, VA has recognized that some studies have found an association between PTSD and poor cardiovascular health. (See www.ptsd.va.gov/professional/pages/ptsd-physical-health.asp and http://www.ptsd.va.gov/professional/pages/ptsd-physical-health.asp). The claims file includes a VHA April 2013 clinical opinion from Dr. C.G. Dr. C.G. is a staff cardiologist at a VA Medical Center. Dr. C.G.'s opinion reflects that he reviewed the entire claims file, including medical opinions provide by civilian physicians, compensation and pension examinations, progress notes, and evidence provided by the Veteran. Dr. C.G. opined that it is more likely than not that PTSD contributed substantially and materially to the Veteran's hypertension and that it is more likely than not that his hypertension is chronically aggravated by his PTSD. In support of his opinion, Dr. C.G. cited to several clinical articles. He also stated, in pertinent part, as follows: [s]ince the [veteran] had symptoms consistent with PTSD prior to his development of hypertension, it would be reasonable to conclude that the PTSD was a causative factor if PTSD were indeed a risk factor for the development of hypertension. Substantial epidemiological evidence shows that PTSD is associated with an increased risk of developing hypertension after controlling for a number of other mental health factors. Moreover, in addition to the epidemiological evidence, there are plausible biological mechanisms through which PTSD might cause hypertension. PTSD causes increased sympathetic activity (increased circulating adrenaline and noradrenaline levels) which in turn elevates blood pressure (Hypertension 1997;1553-1565), as well as abnormalities in other stress responses. The [Veteran's] intermittently elevated blood pressure readings prior to his diagnosis of hypertension are consistent with the known waxing and waning character of PTSD and its intermittent effects on sympathetic tone; these intermittent cyclic elevations are possibly related to development of arterial stiffening and induction of chronic hypertension (International Journal of Hypertension 2012; Article 1D 453465). The examiner also stated as follows: In 1988, the patient's only established major coronary risk factors were 22 years of 1/2 packs per day smoking and elevated cholesterol. At the age of 41, using the widely-accepted Framingham risk model, he had approximately 10% risk of developing symptomatic CAD over the following 10 [years]. The premature and unexpected emergence of CAD in this patient lends weight to the conclusion that risk factors beyond the conventional risk factors considered by the Framingham risk model likely contributed to both CAD and hypertension. Given that PTSD is also associated with the development of CAD, it is reasonable to conclude that PTSD was a contributor to the development of both hypertension and CAD in this particular case. Therefore, it is more likely than not (probability >50%) that PTSD contributed to the development of hypertension and that its presence continues to exacerbate the condition in this particular patient. The Veteran is also service-connected for CAD; however, Dr. C.G. found that it is unlikely that the Veteran's service-connected CAD directly contributes to, or exacerbates, his hypertension. Dr. C.G.'s rationale was that hypertension is considered likely to cause CAD, but there is no compelling evidence that CAD itself causes hypertension. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. The Board finds that the opinion of Dr. C.G. is competent evidence which supports service connection for hypertension as secondary to PTSD in this particular claim. The Board, based on the foregoing, and in giving the benefit of the doubt to the Veteran, finds that he is entitled to service connection for hypertension as secondary to PTSD. 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER 1. Since new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, the claim is reopened, and the appeal is allowed to this extent. 2. Entitlement to service connection for hypertension is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs