Citation Nr: 1331165 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 10-12 773 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim seeking entitlement to service connection for hypertension and if so whether the reopened claim should be granted. 2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to February 1969. This appeal is before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. Jurisdiction over the case was subsequently transferred to the RO in Indianapolis, Indiana. Although the RO determined that new and material evidence had been submitted to reopen the Veteran's claim for service connection for hypertension, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The claim to reopen is decided herein while the other matters on appeal are addressed in the REMAND that follows the ORDER section of the decision. FINDINGS OF FACT 1. In an unappealed rating decision issued in January 2006, service connection was denied for hypertension. 2. Evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim was received less than one year after the January 20006 rating decision. CONCLUSION OF LAW New and material evidence has been submitted to reopen the claim for service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board 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 decision makers. 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 United States Court of Appeals for Veterans Claims (Court) has 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). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). 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). Factual Background and Analysis The Veteran's claim seeking service connection for hypertension was originally denied in a January 2006 rating decision. The claim was denied based on the RO's determination that hypertension was not present until more than one year following the Veteran's discharge from service and was not caused or aggravated by his service-connected diabetes mellitus, type II. Although the Veteran initiated an appeal of that decision and was provided a Statement of the Case addressing the issue, he did no perfect the appeal with the submission of a substantive appeal. The evidence received prior to the expiration of the appeal period includes a statement dated in June 2006 from a private physician expressing an opinion that it is more likely than not that the Veteran's hypertension is related to his service-connected diabetes mellitus, type II. This evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim. Accordingly, it is new and material and reopening of the claim is in order. ORDER The Board having determined that new and material evidence has been submitted, reopening of the claim for service connection for hypertension is granted. REMAND The Veteran previously claimed that service connection is warranted for hypertension because it is secondary to his service-connected diabetes mellitus. Currently, he claims that service connection is warranted for the disability because it is secondary to his service-connected PTSD. He also claims that his high blood pressure was initially diagnosed in 1969 or 1970, but that the physician who rendered that diagnosis has died. The Board notes that the medical evidence of record initially documents a diagnosis of hypertension in 2002. Since the Veteran has alleged that he was diagnosed with hypertension as early as 1969, further development to obtain the earliest available records documenting the presence of hypertension should be completed. In response to the current claim, the Veteran was afforded a VA examination in August 2008. The examiner opined that the Veteran's hypertension was not caused or aggravated by his PTSD. The examiner did not provide adequate rationale for the opinion that the hypertension was not aggravated by PTSD. In addition, the examiner did not provide an opinion concerning whether the hypertension was caused or aggravated by the service-connected diabetes mellitus, type II. Therefore, the Board has determined that the Veteran should be afforded another VA examination to determine the etiology of his hypertension. With respect to the claim for a higher initial rating for PTSD, the Board notes that the Veteran has not been afforded a VA examination to determine the current degree of severity of the disability since August 2008. He alleges that the manifestations of the disability now include auditory hallucinations. Moreover, a February 2011 VA outpatient record indicates that the Veteran reported hearing things, like helicopters, several times a week. The Veteran's representative has requested the Board to remand the case for the purpose of affording the Veteran a VA examination to determine the current degree of severity of his PTSD. In light of these circumstances, the Board agrees that a remand is required to afford the Veteran a current VA examination. The Board also notes that the Veteran informed a VA health care provider in February 2011 that he was getting set to retire from his wall covering business because he does not want to deal with people and wishes to isolate himself more. Therefore, while this case is in remand status, the originating agency should clarify whether the Veteran is claiming to be unemployable due to his service-connected PTSD or due to the combined effects of his service-connected disabilities. Finally, the Board notes that VA outpatient treatment records up to March 2011 are of record. Therefore, while the case is in remand status, any more recent VA outpatient records pertinent to the Veteran's claims should be obtained. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should request the Veteran to clarify whether he is claiming to be unemployable due to his PTSD or due to the combined effects of his service-connected disabilities. The RO or the AMC should respond appropriately to any response received from the Veteran. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertaining to the Veteran's claims, to include any records documenting the presence of hypertension prior to 2002 and any pertinent VA outpatient records for the period since March 2011. 3. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the etiology of his hypertension. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Following the examination and review of the Veteran's pertinent history, the examiner should answer the following questions: Is there a 50 percent or better probability that the Veteran's hypertension originated during active service or is otherwise etiologically related to active service? Is there a 50 percent or better probability that the Veteran's hypertension was caused or permanently worsened by his service-connected PTSD and/or his service-connected diabetes mellitus, type II. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 4. The Veteran should also be provided a VA examination by an examiner with sufficient expertise to determine the current degree of severity of his PTSD. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files should be made available to and reviewed by the examiner. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. In addition, the examiner should be requested to provide an opinion concerning the impact of the disability on the Veteran's ability to work, to include whether the disability is sufficient by itself to render the Veteran unemployable. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 5. The RO or the AMC should also undertake any other indicated development. 6. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action unless he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 and Supp. 2012). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs