Citation Nr: 1324762	
Decision Date: 08/05/13    Archive Date: 08/13/13

DOCKET NO.  10-03 242	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder, to include depression,.

2.  Entitlement to service connection for an acquired psychiatric disorder.

3.  Entitlement to service connection for hypertension.

4.  Entitlement to service connection for diabetes mellitus, claimed as secondary to Agent Orange exposure.

5.  Entitlement to service connection for peripheral neuropathy of the lower extremities, claimed as secondary to Agent Orange exposure.

6.  Whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss disability.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from September 1962 to August 1989.

This case comes to the Board of Veteran' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

The Board has recharacterized the psychiatric claim on appeal to more broadly reflect the benefit sought.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal except as to the appellate brief of the Veterans Service Organization representing the Veteran.

The REMAND portion of the decision below addresses the issues of service connection for an acquired psychiatric disorder, to include depression; diabetes mellitus; and peripheral neuropathy of the lower extremities.  It also addresses the issue of whether new and material evidence has been submitted to reopen a claim for service connection for bilateral hearing loss disability.
FINDINGS OF FACT

1.  Service connection for anxiety and schizoid depression was denied in unappealed March 1990 rating decision.

2.  The evidence received since the March 1990 decision is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and is sufficient to raise a reasonable possibility of substantiating the claim.

3.  Hypertension is not shown in service or within the initial post separation year, and has not been etiologically related to service.


CONCLUSIONS OF LAW

1.  New and material evidence has been presented to reopen a claim for service connection for an acquired psychiatric disability.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

2.  The criteria for service connection for hypertension are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ .303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Additionally, the Court has held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented.  Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006).

Here, VA provided the Veteran fully adequate VCAA notice for the issues on appeal in a January 2008 letter.

VA further satisfied its duty to assist the Veteran.  VA obtained all relevant medical records and associated these with the record.  Although the Veteran has not been afforded a VA examination in regards to his claim for hypertension, a VA examination is not necessary here as the Board does not dispute that the Veteran has been diagnosed with hypertension and because there is no indication that hypertension is related to service.  Also, in regards to the claim for psychiatric disability, it is noted that VA is not obliged to provide an examination or to obtain a medical opinion in response to a claim to reopen until new and material evidence has been presented.  See 38 C.F.R. § 3.159(c)(4).

Accordingly, the Board will address the claims.

Claim to Reopen

The RO denied the claim for service connection for anxiety and schizoid depression along with personality disorder in a March 1990 rating decision.  The claims for psychiatric disability other than personality disorder were denied as recent VA examination showed no current psychiatric disorder.  The RO notified the Veteran of this decision in a March 1990 letter.  No appeal was filed and this decision became final.  VA received a claim to reopen the previously denied claim in November 2007.

Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). 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.  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be 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).

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993).

Having carefully reviewed the record, the Board finds that evidentiary submissions received since the prior final decision includes new and material evidence sufficient to raise the possibility of substantiating the claim.  Specifically, VA treatment records dated in 2007 show that the Veteran has been diagnosed with major depression.  As such, the prior evidentiary defect is cured and the claim is reopened.

Hypertension

The Veteran seeks service connection for hypertension.  He has not set forth his reasons for believing his disability is due to service.  Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Initially, the Board notes the Veteran does not assert that his claimed hypertension is a result of combat.  Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter.
  
Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.
  
Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.

Hypertension shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307(a) (3), 3.309(a).

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

In this case, the Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against service connection for hypertension.  Hypertension is not shown in service or within the initial post separation year.  Hypertension is first documented many years after service and has not been etiologically related to service.

Service treatment records are silent for hypertension.  Moreover, various reports of examination reflect blood pressure readings within normal limits.  According to the National Institutes of Health and the National Heart, Lung and Blood Institute, normal blood pressure is a systolic reading of less than 120 or a diastolic reading of less than 80.  For VA purposes, hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnostic Code 7101 at Note (1) (2012).

Service initial flying examination dated in November 1968 reflects a blood pressure reading for 120/78.  Reports of examination dated in September 1970and April 1974 reflect blood pressure readings for 100/64 and 106/62, respectively.  Report of examination for retirement dated in May 1988 reflects a blood pressure reading for 106/70.  Clinical findings for these examinations show normal evaluation of the cardiovascular system.  Also, the Veteran denied high blood pressure on the history part of his retirement examination.

Essential hypertension is first documented in private treatment records dated in 2007 on a problem list although the recorded vitals show blood pressure readings as 121/68 and 115/68.  Private treatment records dated in 2008 reflect a past history of hypertension.  Blood pressure was 153/84 in March 2008.  Diagnoses at this time included hypertension.  On re-evaluation in April 2008, blood pressure was 116/76.  Diagnoses included hypertension.  VA treatment records dated in 2008 reflect an assessment for hypertension-doing well.

The evidence of record shows no hypertension in service or within the initial post separation year.

The Veteran is competent to report his symptoms, the onset of those symptoms, and treatment.  Layno, supra.  See also Falzone v. Brown, 8 Vet.App. 398, 405 (1995).  In this regard, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). See also, Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), at 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).  However, in this case, the Veteran is not competent to diagnose himself as having hypertension in service or now that is etiologically related to service as this is not susceptible to lay observation, unlike a broken leg.  Furthermore, to the extent that the Veteran suggests having hypertension in service or soon after service, the Board finds that he is not credible in view of the normal cardiovascular evaluation on his 1988 service retirement examination coupled with his denial of any history of high blood pressure on the history part of that examination coupled with the absence of any report of hypertension due to service on the Veteran's original VA compensation application dated in September 1988.  Thus, the Veteran's report that hypertension is due to service has diminished probative value.

The Board assigns greater probative value to the service retirement examination dated in 1988, which shows normal clinical evaluation of the cardiovascular system and the Veteran's self-reported history denying high blood pressure.  The Board finds that this evidence is more probative because it was prepared contemporaneous with the Veteran's release from service with consideration of a medical history prepared by the Veteran himself.  The Board further finds that this evidence is highly probative as it was prepared by a skilled, neutral, medical professional after examining the Veteran.

The weight of the evidence is against the claim.  As the evidence of record is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C.A. § 5107 (West 2002); Gilbert, supra.  Accordingly, the claim is denied.


ORDER

The petition to reopen the previously denned claim for service connection for an acquired psychiatric disorder to include depression is granted.

Service connection for hypertension is denied.


REMAND

Diabetes Mellitus and Peripheral Neuropathy of the Lower Extremities

The Veteran claims that his currently diagnosed diabetes mellitus is due to Agent Orange exposure and that his peripheral neuropathy of the lower extremities is due to his diabetes.

The Veteran contends that he was exposed to Agent Orange when he was on active duty and stationed at Nakhon Phanom Airbase in Thailand.  He reported that the airbase was a staging area for Agent Orange, but denied directly handling any material.  Service personnel records show that the Veteran was stationed at Nakhon Phanom Airbase from March 1969 to January 1970.

The VA Adjudication Procedures Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section 10 n, addresses the verification of exposure to herbicide agents in locations other than Vietnam or Korea.  The RO is supposed to request herbicide exposure verification from the Department of Defense (DOD) for the timeframe delineated by a claimant.  In this case, the record shows neither a request to DOD nor a request for information from the Defense Personnel Records Information Retrieval System (DPRIS).

Also, it is the policy of the VA Compensation and Pension Service for cases to be referred to the U.S. Army and Joint Services Records Research Center (JSRRC) where the claimed herbicide exposure location or dates were not on the DOD list or on the M21-1MR Korean DMZ list or where the evidence does not otherwise confirm exposure, in order to corroborate the Veteran's claimed exposure unless the claim was inherently incredible or clearly lacked merit.  The record shows no indication that a referral was made to JSRRC.

The Board acknowledges the Memorandum for the Record on "Herbicide Use in Thailand during the Vietnam Era."  However, based on the foregoing, the Board finds that the RO must attempt to verify the Veteran's alleged herbicide exposure at Nakhon Phanom Airbase in Thailand following the procedures provided by the C&P Service in Manual M21-1MR.

Where the record before the Board is inadequate to render a fully informed decision, remand is required in order to fulfill the statutory duty to assist the claimant to develop the facts pertinent to the claims.  Ascherl v. Brown, 4 Vet. App. 371, 377 (1993).

Psychiatric Disability

VA's duty to assist requires that VA obtain a medical examination on behalf of the Veteran to ascertain whether any currently diagnosed psychiatric disorder is related to his psychiatric problems or diagnoses noted in service.  38 C.F.R. § 3.159.  See also, See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low).

Therefore, remand is necessary.

Hearing Loss Disability

The RO denied service connection for bilateral hearing loss disability in a January 1990 rating decision because hearing loss was not shown by the evidence of record.  The RO notified the Veteran of this decision in a letter dated March 1990.  No appeal was filed and that decision became final.

The Veteran seeks to reopen his claim.  He reports that he has been given hearing aids and diagnosed with hearing loss by the VA, but these records are not associated with the claims file.  Therefore, the Board must defer consideration of whether evidence sufficient to reopen the claim has been received.

Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. for the following action:

1.  The RO or AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims to include all VA audiology clinic records dated since 2007.

2.  The RO or AMC should verify the Veteran's dates of service at Nakhon Phanom Airbase Thailand and follow M21-1MR, Part IV, Subpart ii, Chapter 2, Section 10 n. or its equivalent to request herbicide exposure verification from the Department of Defense (DOD) for the Veteran's period of active duty at Nakhon Phanom Airbase Thailand.  If DOD does not confirm herbicide exposure, refer the Veteran's pertinent information to the U.S. Army and Joint Services Records Research Center (JSRRC) with a request for verification of exposure to herbicides.  If exposure to herbicides is confirmed, take appropriate action.  If exposure to herbicides is not confirmed, the RO or AMC should notify the Veteran of the negative reply.

3.  The Veteran should be scheduled for a VA psychiatric examination to ascertain whether any psychiatric disorder shown during the appeal period to include depression is related to the Veteran's psychiatric problems or diagnoses noted in service.  The claims file must be reviewed along with a copy of any pertinent records located in the Veteran's Virtual VA electronic claims file.  

A complete rationale for all opinions is required.  The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s).

If an opinion cannot be expressed without resort to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).

4.  The RO should undertake any other development it determines to be warranted and ensure substantial compliance with the terms of this remand.

5.  After the development requested above has been completed to the extent possible, the RO should readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the matters are returned to the Board for further appellate action.

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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs