Citation Nr: 1325490 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 10-03 862 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for hypertension. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from August 1972 to January 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In December 2006, the RO denied service connection for posttraumatic stress disorder (PTSD). In an April 2009 rating decision, the RO determined that new and material evidence had not been submitted to reopen the previously denied claim for service connection for hypertension. In November 2012, the Board remanded the claims for additional development. In her appeal (VA Form 9) for her psychiatric claim, received in January 2010, the Veteran indicated that she desired a hearing before a Traveling Veterans Law Judge at the RO. In her appeal (VA Form 9) for her hypertension claim, received in January 2011, she indicated that she desired a videoconference hearing before a Veterans Law Judge. In March 2011, she withdrew her request for an in-person hearing, and requested a videoconference hearing. In July 2012, she was notified that a hearing was scheduled for August 21, 2012. However, in a statement dated in August 2012, the Veteran stated that he wished to withdraw her request for a hearing. See 38 C.F.R. § 20.702(e) (2012). Accordingly, the Board will proceed without further delay. FINDINGS OF FACT 1. In an unappealed decision, dated in December 2006, the RO denied the Veteran's claim for service connection for hypertension. 2. The evidence received since the RO's December 2006 decision denying the Veteran's claim for service connection for hypertension, which was not previously of record, and which is not cumulative of other evidence of record, does not raise a reasonable possibility of substantiating the claim. 3. The Veteran has PTSD as a result of her service. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the RO's December 2006 decision denying the appellant's claim for service connection for hypertension; the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 2. PTSD was incurred as a result of the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material The appellant contends that new and material evidence has been presented to reopen her claim for service connection for hypertension. New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2012). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). Certain chronic diseases, to include hypertension, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). 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). An appellant need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. In addition, the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim will be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, a claim will be reopened if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. In December 2006, the RO denied the Veteran's claim for service connection for hypertension. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012). In July 2008, the appellant filed to reopen the claim. In April 2009, the RO denied the claim. The appellant has appealed. The most recent and final denial of this claim was in December 2006. Therefore, the Board must determine if new and material evidence has been submitted since that time. See 38 U.S.C.A. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence of record at the time of the December 2006 final denial included the Veteran's service treatment records, which did not show treatment for, complaints of, or a diagnosis of, hypertension. A separation examination report was not (and is not now) of record. As for the post-service medical evidence, it consisted of VA and non-VA reports, dated between 1991 and 2006. This evidence included private treatment reports from Mount Carmel Health, dated between 1982 and 1995. These records showed the following: in 1982, the Veteran received extensive treatment for chronic cholecystitis and chronic cholestasis. There were no findings of hypertension, "by history" or otherwise. There is a finding that her blood pressure was 110/68. In September 1991, she was noted to have a history of hypertension. On examination, the Veteran's blood pressure was 110/70 (two separate findings). In September 1995, her blood pressure was noted to be 120/90; there was no finding of hypertension, "by history" or otherwise. She was also noted to have a history of smoking two packs of cigarettes per day for 20 years, quitting in 1991. Reports from the Milton S. Hershey Medical Center (MSHMC), and B.W., M.D., dated between 2000 and 2005, showed that the Veteran was noted to be obese, and to have hypertension, with treatment that included medication. VA progress notes, dated in 2006, noted the presence of hypertension. In December 2006, the RO denied the claim. The RO noted that there was no evidence of hypertension in the Veteran's service treatment records. At the time of the RO's decision, there was also no competent opinion of record which linked current hypertension to the Veteran's service, or which showed that hypertension was manifested to a compensable degree within one year of separation from service. The medical evidence received since the RO's December 2006 decision consists of VA and non-VA reports, dated between 1990 and 2013, and reports from the Social Security Administration (SSA). Some of this evidence is duplicative. The evidence which is not duplicative shows that the Veteran was noted to have hypertension as of 2000. The SSA records show that in January 2007, that agency determined that the Veteran was disabled as of October 2005, with a primary diagnosis of affective (mood) disorders. The evidence which was not of record at the time of the RO's December 2006 decision is not cumulative, and is "new" within the meaning of 38 C.F.R. § 3.156. However, the Board finds that this evidence is not material. In this case, the earliest medical evidence of record at the time of the RO's December 2006 decision which showed the existence of hypertension was dated no earlier than 2000. The newly submitted evidence also shows that hypertension existed as of 2000. This is about 27 years after separation from service. In addition, none of the submitted medical evidence contains evidence which indicates that hypertension is related to the Veteran's service, or which shows that hypertension was manifested to a compensable degree within one year of separation from service. In summary, the new evidence is not material, and does not raise a reasonable possibility of substantiating the claim. Accordingly, the claim is not reopened. II. Service Connection The Veteran has contended that she has PTSD from seeing injured and dying soldiers returning from Vietnam, and from being sexually assaulted by a female sailor while in basic training. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). In addition to the previously noted law, 38 C.F.R. § 3.304(f)(5) provides: If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). With regard to subparagraph (f)(5), the Board notes that the discussion in the final rule notice issued in the Federal Register states that a doctor's recitation of a veteran-patient's statements is no more probative than the veteran-patient's statements made to VA. VA is thereby not required to accept a doctor's diagnosis of PTSD due to a personal assault as proof that the stressor occurred or that the PTSD is service connected. However, if VA finds that a doctor's diagnosis of PTSD due to a personal assault is ... "competent and credible" and there is no evidence to the contrary in the record, in all likelihood, such an opinion would constitute competent medical evidence." 67 Fed. Reg. 10330 -01 (Mar. 7, 2002). The Federal Circuit found that the regulation specifically designates - and VA's interpretation contemplates - that medical opinion evidence may be submitted to corroborate the in-service personal assault as the regulation lists records from mental health counseling centers, hospitals, or physicians. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed.Cir. 2011). The evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). In this case, the Veteran does not argue, and the evidence, including a review of the information contained in the Veteran's personnel file and her discharge (DD Form 214), does not show, that she participated in combat. In addition, the claimed stressors are not related to combat. The Veteran's service personnel records do not contain any evidence to show that she was assaulted in any way, or that she was exposed to wounded soldiers returned from Vietnam while she was in training at Great Lakes. The Veteran's service treatment reports show that in November 1972, she underwent psychiatric evaluation. She complained about having bad dreams, being upset about an uncle who was ill, and about problems at home. She was noted to be a "very shy, schizoid type of girl who has functioned up to now without psychiatric treatment or referral." The examiner noted episodes that appeared dissociative in nature. The diagnosis was depressive reaction. In January 1973, she received additional treatment on two occasions. She was noted to have received weekly treatment until she went on Christmas leave. The examiner noted that when she was seen with her parents, that her mother was somewhat domineering and controlling, and that she had difficulty expressing her own wants and desires. The impression was passive-dependent personality. It was recommended that she be discontinued from hospital corpswave school. However, when seen later that same month, it was noted that she continued to have problems adjusting to the military and that she had lost her motivation to fulfill her enlistment. It was strongly recommended that she be administratively discharged as a duly-diagnosed character disorder. A separation examination report is not of record. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1990 and 2013. The VA reports show that the Veteran denied a history of sexual abuse during her initial treatment plan in January 2006. See January 2006 VA VVRC diagnostic summary and initial treatment plan. Beginning in 2006, the Veteran complained that she had been exposed to wounded soldiers returned from Vietnam who were being treated at a nearby hospital while she was training to be a corpswave at her base at Great Lakes. In August 2006, she first claimed to have been the victim of a sexual assault. See August 2006 stressor statement. In 2007, she reported that a former partner was communicating with her through a hummingbird. The Veteran also stated that she could forecast people's deaths. Her diagnoses included bereavement, major depression, alcohol abuse, rule out delusional disorder, and PTSD. In November 2012, the Board remanded the claim. The Board's November 2012 remand directed that the Veteran be afforded a VA examination, and that medical opinions be obtained. Specifically, if the examiner diagnosed PTSD, the examiner was to indicate the in-service stressor(s) underlying that diagnosis; and to provide an opinion as to whether either of the claimed stressors is adequate to support a diagnosis of PTSD, and whether the Veteran's symptoms related to either of the claimed stressors. The examiner was also directed to comment on the effect of the death of the Veteran's partner in August 2005. The examiner was also directed to state whether it is at least as likely as not that any current psychiatric disorder other than PTSD is related to service. A VA PTSD Disability Benefits Questionnaire (DBQ), dated in December 2012, shows that the Veteran was afforded a VA examination by A.M., a VA psychologist. Dr. A.M. indicated that the Veteran's claims file had been reviewed. She marked a box indicating that the Veteran has PTSD that was "contributed to" by her claimed sexual assault; she did not provide any sort of explanation or rationale. In April 2013, the AMC noted that Dr. A.M. had failed to address of all the questions in the Board's remand. The AMC therefore requested that another VA physician, Dr. J.W.M., M.D., provide a supplemental opinion as to whether the claimed stressors were adequate to support a PTSD diagnosis, and whether the Veteran's symptoms are related to either of her claimed stressors. The physician was also requested to comment on the effect of the death of the Veteran's partner in 2005, whether there was evidence of behavioral changes or other relevant changes following the claimed sexual assault, and whether the evidence indicates that the claimed sexual assault occurred. If Dr. J.W.M., M.D., determined that the claimed sexual assault occurred, she was requested to state whether it is at least as likely as not that the Veteran has PTSD due to the claimed sexual assault, and whether it is at least as likely as not that any current psychiatric disorder other than PTSD is related to the Veteran's service. In an addendum, dated in April 2013, Dr. J.W.M., M.D., summarized the Veteran's service treatment reports, and concluded that it was less likely than not (less than a 50 percent probability) that a personal assault occurred. Dr J.W.M. explained that there was a lack of evidence of behavior change or other relevant changes following the claimed assault. However, the addendum opinion lacks probative value because there is no indication that Dr. J.W.M., M.D., is a psychiatrist or psychologist and it appears he or she is not; and Dr. J.W.M., M.D., did not conduct an examination or interview of the Veteran. The RO's reliance on the minimal probative value on this addendum by a non-psychiatrist/psychologist who did not even have the opportunity to personally evaluate the Veteran is misplaced. As such, this is not a competent or credible opinion. As a preliminary matter, the Veteran has not asserted that she ever filed a written complaint or police report, or that any other written records exist of her alleged stressor involving being sexually assaulted by another female sailor. It therefore appears that corroboration is not feasible, and that the claimed stressor involving sexual assault cannot be documented. In this regard, in a memorandum, dated in April 2009, a coordinator for the U.S. Army and Joint Services Records Research Center (JSRRC) at Appeals Management Center (AMC) stated that there was insufficient information to corroborate the claimed stressors which would warrant an attempt to verify either of the claimed stressors, and that referral to the U.S. Army and Joint Services Records Research Center (JSRRC) would be futile. See M21-1MR, Part IV.ii.1.D.15.a. The Board finds that service connection for PTSD is warranted. In December 2012, based on a review of the Veteran's records, and an examination, a VA mental health examiner indicated that the Veteran has PTSD, and that her PTSD was "contributed to" by a sexual assault that occurred during her active service. Therefore, the Veteran is shown to have been diagnosed with PTSD, and the final two elements of establishing service connection for PTSD are established in this opinion - a stressor and nexus opinion. The April 2013 countervailing opinion of record by the VA physician concluded that it was less likely than not that a personal assault occurred, is not competent or credible for the reasons already stated herein, and this opinion is insufficiently probative to warrant a denial of the claim. The Board fully recognizes that there is a complete lack of in-service documentation of the claimed assault. However, as noted, such an absence of documentation is not necessarily fatal to the claim. Given the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran has PTSD that is related to her service. Under such circumstances, the benefit of the doubt is awarded to the Veteran. 38 U.S.C.A. § 5107(b). Service connection is therefore granted for PTSD. III. Duties to Notify and Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). With regard to the claim for service connection for PTSD, as the Board has fully granted the Veteran's claim for service connection, the Board finds that a detailed discussion of the VCAA is unnecessary. Any potential failure of VA in fulfilling its duties to notify and assist the Veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). With regard to the application to reopen the claim for service connection for hypertension, the notification obligation in this case was accomplished by way of a letter from the RO to the appellant dated in November 2012. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). The November 2011 VCAA notice did not comply with the requirement that the notice must precede the adjudication. However, any defect with respect to the timing of the VCAA notice in this case was nonprejudicial. There is no indication that the outcome of the claim has been affected, as all evidence received has been considered by the RO. The Veteran has been provided a meaningful opportunity to participate effectively in the processing of her claim, as she has been afforded the opportunity to submit additional argument and evidence, which she has done. After issuing the letter discussed above, the RO reconsidered the Veteran's claim in an April 2013 Supplemental Statement of the Case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (holding that VA cured any failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). For these reasons, the timing of the VCAA notice was not prejudicial. Mayfield v. Nicholson, 444 F.3d 1328 (2006). It appears that all known and available records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's available service treatment reports, as well as VA and non-VA medical records, and SSA records. In this regard, in the Board's November 2012 remand, it directed that attempts be made to obtain the Veteran's treatment from several VA medical centers (VAMCs), to include the Atlanta VAMC. The Board also directed that reports be obtained from the Long Beach VAMC that are dated prior to January 2006. A review of the claims file shows that no reports from the Atlanta VAMC have been obtained, nor have any pre-January 2006 reports from Long Beach. However, it appears that any outstanding records are unobtainable, as the AMC subsequently obtained records from three other VAMCs, to include reports from the Long Beach VAMC dated between 2011 and 2012. It therefore appears that no further development is warranted. See 38 C.F.R. § 3.159(d) (2012). The Board further notes that the claims file includes records from Mount Carmel, dated between 1982 and 1995, and that in April 2009 and May 2013, Mount Carmel stated that it had no other records for the Veteran. In addition, in March 2013, the Central Ohio Surgical Associates stated that Dr. T.H. (whom the Veteran claimed had treated her) had retired in 2007, and that they did not have a patient by the Veteran's name. Also in March 2013, the office of Dr. J.F. stated that the Veteran had not been seen by them, although all of their systems had been checked. In April 2013, Genesis Health Care essentially stated that it had no records for the Veteran. As the Board has determined that new and material evidence has not been presented, a remand for an examination and/or an etiological opinion is not required to decide the claim. See 38 U.S.C.A. § 5103A(f) (West 2002); Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER New and material evidence not having been submitted, the claim of entitlement to service connection for hypertension is not reopened. The appeal is denied. Service connection for PTSD is granted. _________________________________________________ JONATHAN A. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs