Citation Nr: 1326424 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 10-09 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received to reopen service connection for kidney disease, now claimed as hypertension with renal failure secondary to posttraumatic stress disorder (PTSD), and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to May 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at May 2013 Board videoconference hearing before the undersigned. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. In an unappealed August 2002 decision, the RO denied service connection for kidney disease diagnosed as nephrolithiasis. 2. The Veteran did not perfect an appeal to the August 2002 decision and no additional evidence was received within one year of the August 2002 denial. 3. Evidence received since the August 2002 decision relates to the unestablished fact necessary to substantiate a claim for service connection for kidney disease, now claimed as hypertension with chronic renal failure secondary to PTSD. 4. Hypertension and kidney disease, diagnosed as hypertensive nephrosclerosis, urolithiasis, nephrolithisis, and nephropathy, are related to service-connected PTSD. CONCLUSIONS OF LAW 1. The August 2002 decision which denied service connection for kidney disease is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. The evidence received subsequent to the August 2002 decision is new and material; service connection for kidney disease, now claimed as hypertension with chronic renal failure secondary to PTSD, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a), 3.303, 20.1105 (2012). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hypertension and kidney disease, diagnosed as hypertensive nephrosclerosis, urolithiasis, nephrolithisis, and nephropathy, secondary to PTSD are met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.210 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). In the present case, the Board is reopening and granting the claim for service connection. Because this decision constitutes a full grant of the benefits sought on appeal, no further discussion regarding VCAA notice or assistance duties is required. Reopening Service Connection Law and Analysis The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The RO previously denied service connection for kidney disease, diagnosed as nephrolithiasis, in an unappealed August 2002 decision, finding that a renal condition was not shown in service and that treatment records did not relate the Veteran's current condition to service. The Veteran filed a notice of disagreement to the August 2002 rating decision, but did not perfect his appeal and no additional evidence was received within one year of the August 2002 denial. Therefore, the August 2002 decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Evidence received subsequent to the August 2002 rating decision includes the Veteran's claim to reopen service connection for hypertension with renal failure secondary to service-connected PTSD, private medical opinions which relate hypertension and kidney disease to service-connected PTSD, a May 2012 VA authorized examination and opinion, VA and private treatment records, and the Veteran's statements and May 2013 Board hearing testimony. The Board finds that the new evidence submitted has raised an alternate theory of entitlement, specifically, a claim for service connection for hypertension with renal failure secondary to service-connected PTSD, which triggered VA's duty to assist the Veteran such that it raises a reasonable possibility of substantiating the claim. See Shade, 24 Vet. App. 118. The Board finds that private medical opinions tend to establish a nexus between currently diagnosed hypertension and kidney disease and service-connected PTSD, and as such, relate to an unestablished fact that is necessary to substantiate the claim for service connection. Accordingly, the Board finds that new and material evidence sufficient to reopen service connection for kidney disease, now claimed as hypertension with chronic renal failure secondary to PTSD, has been received, and the claim is reopened. 38 C.F.R. § 3.156(a). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b) which is applicable to this appeal, the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). Service Connection Analysis The Veteran contends that hypertension with chronic renal failure is secondary to his service-connected PTSD. After reviewing all the lay and medical evidence, including the Veteran's statements and testimony, the Board finds that the weight of the evidence shows that currently diagnosed hypertension and kidney disease are related to service-connected PTSD. Because the Veteran specified during a May 2013 videoconference hearing that he was only claiming service connection for hypertension and chronic renal failure on a secondary basis, and not on a direct basis, and because the Board is granting service connection for hypertension and kidney disease on a secondary basis, the Board need not address whether service connection is warranted on a direct basis. The Veteran is currently service-connected for PTSD. The record also shows that the Veteran has currently diagnosed hypertension and kidney disease, variously diagnosed as hypertensive nephrosclerosis, urolithiasis, nephrolithisis, and nephropathy. Private treatment reports from Dr. M.G. at North Georgia Kidney Specialists dated from 2005 to 2009 show that the Veteran was seen for follow-up treatment for chronic renal failure and reflect current diagnoses of hypertension, hypertensive nephrosclerosis, and urolithiasis. A May 2012 VA authorized examination shows, based on examination and a review of the record, that the Veteran has current diagnoses of hypertension, nephrolithiasis, and nephropathy. As such, the Board finds that the Veteran has currently diagnosed hypertension, hypertensive nephrosclerosis, urolithiasis, nephrolithisis, and nephropathy. The Veteran testified during a May 2013 Board videoconference hearing that hypertension was diagnosed in approximately 1998, and he testified that he was first diagnosed with PTSD approximately 2002. While PTSD was diagnosed subsequent to hypertension and kidney disease, the Veteran testified that he had experienced symptoms related to PTSD for the last 40 years, beginning right after his time in Vietnam. The Veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Thus, the Board finds that the Veteran is competent to identify a history of psychiatric symptoms since service, to include stress and anxiety preceding his formal diagnosis of PTSD, and the Board finds that the Veteran's testimony is credible and consistent objective findings in the record. In that regard, while a December 2004 letter from the Veteran's VA psychiatrist shows that the Veteran had been receiving treatment at VA since December 2002, the VA psychiatrist also stated that the Veteran had been impaired due to his PTSD symptoms for years. Thus, service connection for hypertension and kidney disease, claimed as secondary to PTSD, may be based on either a finding of either causation or aggravation. The record contains conflicting evidence with respect to whether hypertension and kidney disease are etiologically related to service-connected PTSD. The Veteran has provided medical opinions from three different private physicians in support of his claim. In a September 2009 letter, Dr. M.G. diagnosed the Veteran with chronic kidney disease secondary to hypertension. In a June 2009 letter, Dr. R.R. indicated the Veteran had enduring disabilities due to PTSD which resulted in hypertension, which in turn resulted in renal failure. A February 2009 treatment report from Dr. C.P. at Northside Family Practice shows that the Veteran was seen for a consultation for kidney disability and stress. The Veteran was noted to have a history of PTSD as well as a history of renal insufficiency, first diagnosed in 2001 with a diagnosis of hypertension for an unknown period of time. A physical and mental status examination was completed. Dr. C.P. opined that hypertension was possibly related to the long-term effects of the Veteran's PTSD. He stated that while it was unclear if renal insufficiency was solely due to hypertension, it could contribute to this as well. He opined, therefore, that the Veteran's PTSD may have contributed indirectly to his hypertension, and therefore renal insufficiency. In contrast, a May 2013 VA examiner opined that hypertension and claimed kidney conditions were less likely than not proximately due to or the result of the Veteran's service-connected condition. The VA examiner reasoned that the Veteran was in active service from August 1966 to May 1969, and that he was diagnosed with hypertension in 1995 and he was diagnosed with kidney problems in 2001. The examiner reasoned that this represented 26 and 32-year time gaps, respectively, between the Veteran's current disability and exit from military service, which did not establish a longitudinal trend of subjective complaints and objective findings. Therefore, the examiner opined that a causal relationship could not be established even though civilian letters state that the conditions could be related. According to the Court, "the probative value of medical opinion evidence 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 the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The Board finds that a May 2013 opinion is of little probative value in this case. While the VA authorized examiner opined hypertension and claimed kidney conditions were less likely than not proximately due to or the result of the Veteran's "service-connected condition," in his reasoning, the examiner focused on the time gap between the Veteran's current disabilities and service and the "lack of a longitudinal trend of subjective complaints and objective findings" from service. While the Board finds that the time gap between the onset of the Veteran's hypertension and kidney disease and service is pertinent to the question of direct service incurrence, the Board finds that the VA examiner did not clearly address the relationship between the Veteran's current disabilities and service-connected PTSD in his reasoning. While the opinion purports to address secondary service connection, the examiner did not identify the Veteran's diagnosis of PTSD, and did not address the Veteran's contentions that PTSD symptoms were present and persistent since shortly after service separation. Moreover, the VA examiner opined that "a causal relationship could not be established," but did not address the question of whether hypertension or kidney disease were aggravated by service-connected PTSD. Because the May 2013 opinion is not based on a full and accurate factual premise and does not adequately address the issue of secondary service connection, to include on the basis of aggravation, the Board finds that the opinion is inadequate and is of little probative value in this case. VA and private treatment records show that the Veteran received nephrology and urology treatment through private physicians and that Dr. M.G. is the Veteran's treating nephrologist. In a May 2003 hearing before a Decision Review Officer, associated with the Veteran's prior claim for benefits, he testified that Dr. R.R. was his primary care provider, and private treatment records dated in 2001 confirm that copies of the Veteran's urology treatment reports were sent to Dr. R.R. in conjunction with his treatment. Dr. C.P. discussed the Veteran's medical history and had an opportunity to examine the Veteran in conjunction with the February 2009 consultation. As such, the Board finds that Dr. M.G., Dr. R.R. and Dr. C.P. are familiar with the Veteran's medical history as it relates to PTSD, hypertension, and kidney disease. Dr. R.R. essentially opined in his June 2009 letter that the Veteran's hypertension and renal disease were causally related to his PTSD. Because Dr. R.R. is Veteran's treating primary care physician, the Board finds that his opinion is probative and as the Veteran has been followed in his office, and he has knowledge of the Veteran's disabilities as they relate to PTSD, kidney disease, and hypertension. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases). The Board finds that Dr. M.G. and Dr. C.P.'s opinions are also probative and tend provide further support for Dr. R.R.'s opinion. Dr. M.G. is also one of the Veteran's treating physicians, specializing in nephrology. The Board finds that his September 2009 opinion confirms that the Veteran's kidney disease is secondary to hypertension. The Board finds that this opinion is consistent with findings from private treatment records dated from 2005 to 2009, which provide a diagnosis of hypertensive nephrolithisis, as well as an earlier June 2003 letter from Dr. L.L. at North Georgia Kidney Specialists, which identifies a diagnosis of moderate chronic renal failure from hypertension. The Board finds that Dr. M.G.'s opinion tends to support for Dr. R.R.'s opinion, which relates the hypertension and kidney disease. While Dr. C.P.'s opinion, stating that PTSD may have contributed indirectly to hypertension, and therefore renal insufficiency, is speculative in nature, the Board finds that it nonetheless tends to indicate that there may be a nexus between the hypertension and kidney diseases and service-connected PTSD. As such, the Board finds that Dr. C.P.'s opinion lends further support to Dr. R.R.'s June 2009 opinion which provides a nexus between hypertension, kidney disease and service-connected PTSD. Resolving reasonable doubt in the Veteran's favor, the Board finds that the combination of opinions from Dr. R.R., Dr. M.G, and Dr. C.P. provide competent, credible, and probative evidence which relates hypertension and kidney disease to PTSD. The Board notes that because Dr. R.R. found that hypertension and kidney disease were directly caused by PTSD, the Board need not consider the baseline level of severity of hypertension prior to aggravation in this case. Cf. Allen v. Brown, 7 Vet. App. 439 (1995). The Board finds that the weight of the evidence, to include medical opinions from the Veteran's private treating physicians, shows that hypertension and kidney disease are proximately due to, the result of, or aggravated by service-connected PTSD. For these reasons and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for hypertension and kidney disease, diagnosed as hypertensive nephrosclerosis, urolithiasis, nephrolithisis, and nephropathy, is warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7 (2012). ORDER Service connection for hypertension and kidney disease, diagnosed as hypertensive nephrosclerosis, urolithiasis, nephrolithisis, and nephropathy, secondary to service-connected PTSD is granted. ____________________________________________ MATTHEW TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs