Citation Nr: 1328340 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-15 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Whether new and material evidence has been received in order to reopen a claim for service connection for hypertension as secondary to service-connected posttraumatic stress disorder (PTSD) and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1944 to June 1946, including combat service during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision of the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA), which granted the Veteran's request to reopen a claim for service connection for hypertension and denied the claim on its merits. A review of the paperless, electronic (Virtual VA) claims processing system does not reveal any documents pertinent to the claim on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a final decision issued in September 2009, the RO denied the Veteran's claim of entitlement to service connection for hypertension. 2. Evidence added to the record since the final September 2009 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. The September 2009 rating decision that denied the Veteran's claim of entitlement to service connection for hypertension is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claim of entitlement to service connection for hypertension is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of the claim is deferred pending additional development consistent with the VCAA. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as cardiovascular-renal disease, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. That regulation permits service connection not only for disability caused by service-connected disability, but 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). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The 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. 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 United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran previously claimed entitlement to service connection for hypertension in July 2009. In a September 2009 rating decision, the RO denied service connection for such disorder as the service treatment records were negative for a diagnosis of hypertension and a VA examiner determined that the Veteran's hypertension was not related to service or the Veteran's service-connected PTSD. The examiner reasoned that although stress and anxiety could play into elevations of blood pressure, there was no specific or relevant documentation in the medical literature that specifically stated that PTSD caused hypertension and that "there appeared to be no aggravation issues." The RO denied service connection for hypertension as the evidence did not show that hypertension was related to the service-connected PTSD nor was there any evidence of hypertension during service. The Veteran did not appeal this September 2009 rating decision and it is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for hypertension was received prior to the expiration of the appeal period stemming from the September 2009 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Evidence received since the September 2009 rating decision consists of the July 2011 VA examination report and the Veteran's lay statements. In this regard, the VA examiner opined that the Veteran's hypertension was less likely as not caused by, a result of, or aggravated by his PTSD and that the available medical literature did not demonstrate causality between PTSD and hypertension from studies which were "performed in a rigorous way." In November 2011, the Veteran cited to a study published in the Journal of American Medicine which purportedly found that veterans with PTSD were more prone to heart risk factors as well as a second study which purportedly found that PTSD had been linked with elevated blood pressure. The Veteran has also submitted statements and testimony detailing anxiety and symptoms through the present time. The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Presuming the credibility of the Veteran's statements pursuant to Justus and in light of the newly citied studies that address a potential nexus between the Veteran's hypertension and service-connected PTSD, the Board finds that the evidence received since the September 2009 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claim of service connection. See 38 C.F.R. § 3.156(a). In this regard, the Veteran's claim for hypertension was previously denied as there was no nexus to service or service-connected PTSD. The RO had determined that a VA examination to address the etiology of such a disorder was necessary to decide the claim. See Shade, supra. Moreover, while the July 2011 VA examiner offered a negative opinion, such addresses the etiology of the Veteran's hypertension and, as such, offers a more complete view of the disorder. Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for hypertension is reopened. ORDER New and material evidence having been received, the claim for service connection for hypertension is reopened; the appeal is granted to this extent only. REMAND The Veteran contends that his service-connected PTSD caused or aggravated his hypertension. In support of this claim, the Veteran submitted multiple abstracts from medical studies and referenced other such studies which purportedly documented a link between PTSD and hypertension. A July 2011 VA examiner opined that he could not find even one medical article which was conducted in a randomized, controlled fashion (as they were all retrospective studies) and that there were zero articles which were performed in a rigorous way as to demonstrate casualty between PTSD and hypertension. The examiner also opined that the Veteran's PTSD had not permanently aggravated his hypertension. However, in November 2011, the Veteran cited to two additional studies which purportedly documented a link between PTSD and hypertension. On remand, the examiner should address the studies identified by the Veteran and explain the significance of a randomized controlled study in demonstrating causation. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum to the July 2011 VA examination, if possible, or afford the Veteran a VA examination to determine the nature and etiology of his claimed hypertension. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had been aggravated beyond the normal progress of the disorder by his service-connected PTSD? If so, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner should specifically address the Veteran's contention that some medical studies have established a link between PTSD and hypertension, including the studies detailed by the Veteran in November 2011 and the excerpts provided to the Board in November 2010. In addition, the examiner should address the significance, if any, of conducting randomized controlled studies in demonstrating causality between PTSD and hypertension. In answering the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 2. If any benefit sought on appeal remains denied, a supplemental statement of the case should be issued before the claims file is returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs